UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Procedure 


IN 


Interstate  Commerce  Cases 


With  Illustrative  Precedents  and  Forms 


BY 

JOHN  B.  DAISH,  A.B.,  LL.M. 

in 


WASHINGTON 

W.  H.  LOWDERMILK  &  COMPANY 
1909 


•r 


Copyright,  1909, 
by  JOHN  B.  DAISH. 


£ 

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Vt 

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PREFACE 

The  enactment,  in  1887,  of  the  original  act  to  regulate  commerce 
marked  an  epoch  in  the  history  of  the  Federal  control  over  interstate 
and  foreign  commerce.  The  Congress  had  not  theretofore  passed  any 
general  legislation  under  the  commerce  clause  of  the  Constitution,  al- 
though the  statute  books  contained  certain  provisions1  dependent 
thereon.  Since  that  time,  however,  a  number  of  statutes  having  va- 
rious objects  in  view  have  been  passed  under  the  commerce  power  of 
the  Constitution.  The  year  1887  may  be  taken  as  the  beginning  by 
the  Federal  Government  of  the  supervision  and  control  over  rates  of 
carriers  engaged  in  interstate  commerce. 

The  causes  of  complaint  against  the  then  existing  railway  manage- 
ment were  many  but  they  centered  chiefly  around  what  was  called 
' '  discrimination, ' '  a  term  which  has  since  had  under  judicial  decisions 
a  different  meaning  as  used  in  the  act  to  regulate  commerce.  The 
causes  which  led  up  to  the  passage  of  the  act  are  referred  to  in 
Chapter  I. 

That  many  of  these  causes  of  complaint  have  been  corrected  by  the 
original  and  supplemental  acts  must  be  admitted;  some  of  the  in- 
equalities of  that  period  and  others,  however,  have  continued.  For  the 
purpose  of  correcting  these,  other  acts  have  been  passed  and  the  In- 
terstate Commerce  Commission  has  been  made  the  governmental 
agency  for  the  determination  of  questions  relating  to  transportation, 
to  supervise  carriers,  and  for  bringing  about  a  correction  of  rates 
and  practices,  if  in  violation  of  the  statute. 

The  Interstate  Commerce  Commission  has  consisted  of  earnest  and 
conscientious  men  of  high  ability;  it  has  striven,  to  the  extent  the 
act  to  regulate  commerce  would  permit,  to  bring  about  a  correction  of 
the  violations  of  the  law,  a  better  understanding  of  the  rights  of 
parties  and  to  secure,  in  accordance  with  the  duty  imposed  on  it  by 
section  21  of  the  act,  information  and  data  valuable  in  the  determina- 
tion of  questions  connected  with  the  regulation  of  commerce  and  to 
recommend  such  additional  legislation  as  it  might  deem  proper.  The 
Commission  is,  perhaps,  constitutionally  speaking,  an  anomalous  body 
in  our  Federal  organization,  but  the  benefits  wrought  by  it  are  ap- 
parent. In  the  exercise  of  its  quasijudicial  duties  there  has  been  ren- 
dered a  series  of  decisions,  from  which  may  be  drawn  the  proper  prin- 

1  See  note  1,  p.  3. 


VI  PREFACE 

ciples  of  transportation ;  as  a  result  of  its  administrative,  supervisory, 
and  regulatory  powers  great  good  has  been  accomplished ;  and  through 
the  medium  of  general  investigations  many  needed  reforms  have  been 
brought  about  by  the  exercise  of  the  Commission's  inquisitorial 
powers,  probably  much  curtailed  by  the  recent  decision  in  Harriman 
v.  U.  S.,  No.  315,  Supreme  Court,  October  Term,  1908. 

"While  the  act  of  February  4,  1887  (24  Stat.  L.,  379)  was  the  first 
law  of  the  Congress  having  for  its  purpose  the  amelioration  of  exist- 
ing transportation  conditions  by  requiring  reasonableness  of  charges 
for  transportation  and  by  prohibiting  discriminations,  the  provisions 
thereof  were  not  entirely  original.  The  common  law,  the  previous  leg- 
islation of  Great  Britain  and  the  decisions  of  the  courts  thereon,  and 
the  analogous  laws  of  several  of  the  States2  already  existed.  These 
enactments,  having  substantially  the  same  purposes,  served  as  models 
or  guides  for  the  Congress.  It,  therefore,  had  the  benefit  of  this  pre- 
vious experience. 

The  act  to  regulate  commerce  is,  in  part,  in  derogation,  and,  in  part, 
in  affirmation  of  the  common  law.  It  attempts,  and  the  purpose  of  the 
several  amendments  has  been  to  perfect  the  attempt,  to  place  those 
who  are  engaged  as  carriers  of  interstate  commerce  by  rail  under  the 
duties  and  obligations  which  are  imposed  upon  common  carriers  by  the 
common  law ;  namely,  to  serve  all,  with  adequate  facilities,  for  a  reason- 
able compensation  and  without  discrimination.  These  obligations,  mod- 
ified only  to  such  extent  as  is  made  necessary  by  our  economic  develop- 
ment, have  been  the  foundation  of  the  legislative  enactments. 

In  addition  to  the  original  act  to  regulate  commerce  there  have  been 
a  considerable  number  of  amendments,  and  the  statute  itself  has  re- 
ceived interpretation  and  construction  at  the  hands  of  the  Commis- 
sion and  the  courts.  To  the  layman,  and  at  times  to  the  practitioner, 
the  act  and  the  decisions  taken  together  are  bewildering.  As  the 
subject-matter  of  cases  deals  most  intimately  with  the  every-day  busi- 
ness transactions  and  affects  seriously  the  commercial  fabric  such 
confusion  is  lamentable.  A  number  of  well-written  works  dealing 
with  the  substantive  law  are  available  for  the  business  man  or  the 
practitioner.  Although  twenty  years  have  passed  since  the  statute 
was  enacted  no  one  heretofore  has  attempted  to  delineate  the  proce- 
dure which  is  peculiarly  applicable  to  cases  involving  interstate  com- 
merce, either  under  the  act  to  regulate  commerce  or  arising  under 
general  law. 

The  Interstate  Commerce  Commission,  it  is  true,  has  provided  rules 
of  practice  but  they  are  necessarily  brief.  The  Commission  has  so 
framed  these  rules  as  to  make  the  way  easy  for  the  complaining  user 

*  For  list  of  States  having  railway  regulation  laws  in  1886,  see  Chapter  I. 
The  provisions  of  several  State  laws  were  considered  in  I.  C.  C.  v.  C.  N.  O.  & 
T.  P.  E.  Co.  (167  U.  8.,  479). 


PREFACE  VII 

of  transportation  facilities,  often  at  the  risk  of  not  advising  the  de- 
fendant carrier  of  the  specific  violation  of  which  it  is  charged,  and 
the  same  difficulty  frequently  confronts  a  complainant  in  ascertain- 
ing before  the  hearing  the  real  and  complete  defense  of  the  carrier. 

From  time  to  time  customs  have  grown  up,  rulings  have  been  made, 
and  matters  have  been  settled.  Some  of  these  have  been  committed 
to  writing  while  others  are  known  only  to  those  in  active  practice  be- 
fore the  Commission.  The  rules  applicable  to  pleading,  to  evidence, 
and  to  practice  have  not  reached  such  a  stage  of  development  that 
in  each  and  every  instance  it  can  be  safely  stated  what  is  the  correct 
method.  The  practice  before  the  Commission,  in  other  words,  has  not 
yet  made  such  progress  that  it  has  become  definitely  settled.  One  of  the 
purposes  of  this  work  has  been  to  assist  in  crystallizing  the  rules  ap- 
plicable to  procedure  before  the  Commission  and  if  it  shall  even  in  part 
serve  this  purpose  the  author  will  be  duly  rewarded. 

The  pleadings,  the  evidence,  and  the  practice  are  of  the  simplest 
form  possible ;  no  technicalities  are  permitted.  Yet  such  laxity,  while 
it  has  its  commendable  features,  often  leads  into  errors  more  serious 
than  one  would  suppose.  For  instance,  failure  to  have  proper  par- 
ties may  result  in  the  loss  of  important  relief;  want  of  proof,  legal 
in  its  nature,  may  prevent  reparation.  Thus,  although  the  practi- 
tioner, and  often  the  layman,  may  permit  himself  to  plead  or  conduct 
a  case  in  an  informal  way  and  perhaps  carelessly,  the  result  is  gen- 
erally appropriate  to  such  a  course.  It  behooves  one,  therefore,  to 
proceed  as  correctly  as  possible. 

It  was  long  denied  that  it  was  intended  by  the  act  of  1887  to  pro- 
vide that  the  Interstate  Commerce  Commission  should  have  the  power 
to  name  a  rate  for  the  future,  if  after  hearing  and  investigation  an 
existing  rate  was  found  unreasonable.  From  the  passage  of  the  act 
to  1896  the  Commission  substantially  exercised  this  power,  either  with 
or  without  the  aid  of  the  courts.  In  1896  the  Supreme  Court8  held 
that  the  language  of  the  act  contained  no  such  authority,  largely  on 
the  ground  that  such  extensive  power  is  not  to  be  implied,  but  can 
only  result  from  express  delegation.  The  patrons  of  the  carriers  and 
the  Commission  were  much  wrought  up  by  this  decision  but  the  au- 
thority of  the  court  was  final.  The  shippers  sought  additional  legis- 
lation, chiefly  legislation  by  which  some  tribunal,  preferably  the  In- 
terstate Commerce  Commission,  would  be  empowered  to  substitute  a 
reasonable  for  an  unreasonable  rate.  This  resulted  first  in  the  pas- 
sage of  the  Elkins'  law  (act  of  February  19,  1903,  32  Stat.  L.,  847) ; 
a  decade  of  agitation  was  required  to  secure  the  relief  afforded  by 
the  second  important  amendment,  the  act  of  June  29,  1906  (34  Stat. 
L.,  584).  Upon  the  constitutionality  of  the  last-mentioned  act  grave 

•L  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (167  U.  S.,  479). 


PREFACE 

doubts  have  been  expressed  and  only  a  decision  of  the  court  of  last  re- 
sort will  settle  the  matter. 

That  the  several  acts  have  been  beneficial  to  the  carriers,  their 
patrons,  and  the  country  at  large  can  not  be  gainsaid,  and  although 
specific  instances  may  be  cited  to  the  contrary,  on  the  whole  this 
legislation  has  been  advantageous  to  the  country. 

The  present  work  has  been  prepared  primarily  for  the  practitioner, 
but  the  author  has  kept  in  view  the  fact  that  a  large  number  of 
cases  before  the  Commission  are  conducted  by  laymen,  who,  while  pos- 
sessing an  intimate  knowledge  of  the  facts  involved,  must  necessarily 
lack  the  training  to  advantageously  present  them  and  to  argue  upon 
the  application  of  the  statute.  It  has  also  been  kept  in  mind  that 
the  procedure  is  special,  a  distinct  branch  of  transportation  law,  re- 
quiring in  most  instances  technical  knowledge  of  the  facts  and  of  the 
law;  without  at  least  the  latter,  the  practitioner  is  at  a  disadvantage. 

As  the  laws  creating  State  railroad  commissions  have  been  fre- 
quently modeled  on  or  served  as  models  for  the  Federal  enactments, 
and  as  there  is  often  great  similarity  in  the  powers  of  the  Federal  and 
State  commissions,  and  as  in  many  instances  the  procedure  before  those 
tribunals  is  not  materially  different,  it  is  believed  that  the  rules  and 
principles  herein  stated  may  serve  as  an  aid  and  authority  in  pro- 
ceedings before  State  commissions. 

The  second  part  of  the  work  attempts  to  point  out  only  those  pecu- 
liar characteristics  applicable  to  interstate  commerce  cases  before  the 
courts.  Should  information  be  needed  upon  Federal  procedure,  gen- 
eral in  its  nature,  reference  may  be  had  to  the  numerous  standard 
works  upon  that  subject. 

The  author  desires  to  express  his  appreciation  of  the  assistance  and 
suggestions  given  him  by  George  F.  Brownell,  Esq.,  of  New  York,  and 
C.  R.  Hillyer,  Esq.,  special  attorney  of  the  Bureau  of  Corporations, 
Department  of  Commerce  and  Labor;  and  his  thanks  are  due  to  the 
West  Publishing  Company  of  St.  Paul,  for  permission  to  use  the 
American  Digest  Classification  Scheme,  in  conformity  to  which  the 
work  has  been  arranged  as  far  as  appropriate. 

JOHN  B.  DAISH. 

WASHINGTON,  D.  C.,  February,  1909. 


TABLE  OF  CONTENTS 


Part  I — Procedure  Before  Interstate  Commerce  Commission 

CHAPTEB  I — INTRODUCTION: 

Page 

SEC.       1.  Genesis  of  the  Interstate  Commerce  Commission,   3 

2.  Qualifications  of  the  Commission,   7 

3.  Divisions  in  the  Office  of  the  Commission,  7 

4.  Operating  Division,   7 

5.  Law  Division,   8 

5a.  Claims  Division,   8 

6.  Division  of  Prosecutions,  8 

7.  Safety  Appliance  Division,   8 

8.  Division  of  Statistics  and  Accounts, 9 

9.  Division  of  Tariffs  and  Transportation, 9 

10.  Statistical  Groupings,   9 

11.  Decisions  of  the  Commission,   10 

12.  Annual  Eeports  of  the  Commission,  11 

13.  Administrative  Kulings  and  Opinions,  11 

14.  Publications  of  the  Commission,    12 

15.  Sessions  of  the  Commission, 12 

16.  Seal  of  the  Commission,  13 

17.  Secretary  of  the  Commission,   13 

18.  Special  Examiners,    13 

19.  Employees,  13 

20.  Docket  of  the  Commission,   14 

21.  Time  required  for  a  Decision, 14 

CHAPTER  II — JURISDICTION  OF  THE  COMMISSION: 

SEC.     22.  Jurisdiction  of  the  Commission,    15 

23.  Legal  Status  of  the  Commission, 16 

24.  Nature  of  Jurisdiction  of  Commission,  16 

25.  Effect  of  Lack  of  Jurisdiction,   17 

26.  Jurisdiction  as  Affected  by  the  Amount  in  Controversy, 18 

27.  Necessity  that  Jurisdiction  Appear,   18 

28.  Jurisdiction  by  Consent,    18 

29.  Territorial  Jurisdiction  of  the  Commission,  19 

30.  Exclusive  Jurisdiction  of  the  Commission,  20 

31.  Concurrent    Jurisdiction,    21 

32.  Jurisdiction  to  Determine  Entire  Controversy,  22 

33.  Authority  to  make  Investigations  on  Initiative  of  Commission,  24 

34.  Jurisdiction  to  Grant  Belief  under  Long  and  Short  Haul  Sec- 

tion,    25 

35.  Jurisdiction  of  Commission  to  make  an  Order  upon  Petition,  . .  26 

36.  Miscellaneous  Judicial  Powers  of  the  Commission,   28 

37.  Jurisdiction  to  Award  Eeparation,   29 

IX 


X  TABLE   OF   CONTENTS 

CHAPTER  II — JURISDICTION  OF  THE  COMMISSION — Continued. 

Page 
SEC.     38.  Carriers  over  which  Commission  has  or  has  not  jurisdiction,  . .     32 

39.  Jurisdiction  of  Commission  as  Affected  by  Character  of  Com- 

merce,        36 

40.  Questions  which  the  Commission  will  not  Determine, 42 

41.  Comity    between    the    Interstate    Commerce    Commission    and 

State  Commissions,    44 

42.  Comity  between  the  Commission  and  the  Courts, 45 

CHAPTER  in — ADDITIONAL  POWERS  AND  DUTIES  OF  COMMISSION  UNDER  ACT  TO 
REGULATE  COMMERCE: 

SEC.     43.  Additional  Powers  and  Duties  of  the  Commission,  47 

44.  Executive  and  Administrative  Duties,    47 

45.  Supervisory  and  Regulatory  Powers,  49 

46.  Auxiliary  Powers  of  the  Commission,    50 

CHAPTER  IV — DUTIES  AND  POWERS  OF  COMMISSION  UNDER  ACTS  OTHER  THAN 
ACTS  TO  REGULATE  COMMERCE: 

SEC.     47.  Authority  and  Duties   of   the   Commission   under   Acts   other 

than  the  Interstate  Commerce  Acts,   51 

48.  Authority  and  Duty  of  Commission  under  Act  of  August  7, 

1888,    52 

49.  Authority  of  Commission  under  Safety- Appliance  Acts, 54 

50.  Authority  of  Commission  to  Investigate  and  Report  on  Block 

Signal  Systems,    55 

51.  Authority  of  Commission  to  Approve  Certain  Interlocking  or 

Automatic  Signals  at  Crossings,   56 

52.  Authority  of  Commission  Respecting  Accident  Reports  of  Car- 

riers Engaged  in  Interstate  Commerce,   56 

53.  Authority  of  Commission  under  Joint  Resolution  to  Make  Ex- 

aminations into  Railroad  Discriminations  and  Monopolies  in 
Coal  and  Oil,   57 

54.  Authority  of  Commission  under  Act  to  Promote  the  Safety  of 

Employees  on  Railroads  (ash  pan  act),  58 

55.  Authority  of  Commission  over  Street  Railways  in  the  District 

of  Columbia,   58 

56.  Authority  of  Commission  under  the  Act  to  Promote  the  Safety 

of  Employees  and  Travellers,   59 

57.  Authority  of  Commission  under  the  Act  to  Promote  the  Safe 

Transportation   in   Interstate   Commerce  of  Explosives   and 

other  Dangerous  Articles,    59 

58.  Duty  of  Chairman  of  Commission  under  Arbitration  Act,  ....  60 

59.  Relation  of  Interstate  Commerce  Commission  to  Anti-trust  Law,  60 

60.  Relation  of  the  Commission  to  Customs  and  Immigration  Laws,  63 

CHAPTER  V — INTERPRETATION  AND  CONSTRUCTION  OF  THE  ACT  TO  REGULATE  COM- 
MERCE: 

SEC.     61.  General  Rule  of  Construction  of  Act  to  Regulate  Commerce,  . .     65 

62.  Construction  of  the  Act  to  Regulate  Commerce  by  the  Courts,     65 

63.  Rules  of  Construction  Provided  in  Acts  to  Regulate  Commerce,    66 


TABLE  OF  CONTENTS  XI 

CHAPTER  V — INTERPRETATION  AND  CONSTRUCTION  OF  THE  ACT  TO  EECTOLATE 
COMMERCE — Continued. 

Page 

SEC.    64.  Interpretation  of  Act  to  Eegulate  Commerce  by  Commission,  . .  67 

65.  Construction  of  Act  to  Eegulate  Commerce  by  Commission,  ...  68 

66.  Construction  of  Particular  Sections  by  the  Commission,   70 

67.  The  Subjects   Contained  in   the   Administrative   Eulings   and 

Opinions,    85 

CHAPTER  VI — PLEADING  AND  PRACTICE  BEFORE  THE  COMMISSION  : 

SEC.     68.  Election  of  Forum,  91 

69.  Limitation  of  Actions,   92 

70.  The  Proceedings  in  a  Case  before  the  Commission, 97 

71.  Pleadings  before  the  Commission,  98 

72.  Eules  of  Pleading,    98 

73.  Classes  of  Complaints,   98 

74.  Form  and  Eequisites  of  the  Complaint,  100 

75.  What  the  Petition  should  Contain,   102 

76.  Form  of  Allegations,    103 

77.  Anticipated    Defenses,    104 

78.  Technical  Terms  and  Abbreviations,  104 

79.  Pleading  Written   Instruments,    104 

80.  Prayers,    105 

81.  Verification,     106 

82.  Matters  not  Known  to  Party  Pleading  and  Matters  Peculiarly 

within  Knowledge  of  Adverse  Party,   106 

83.  Effect  of  Omission  to  make  Proper  Allegations,   106 

84.  Conclusiveness  of  Allegations  on  Party  Pleading;   Waiver  of 

Part  of  Allegations,   106 

85.  Amendments,    107 

86.  Formal  Defects  in  Pleadings;  Scandal  and  Impertinence;  Mul- 

tif  ariousness ;  Departure  and  Variance,   108 

87.  Admissions,    109 

88.  Exhibits ;  BiU  of  Particulars,  109 

89.  Filing  of  Complaint;   Copies  of  Complaint;   Service  of  Com- 

plaint,       110 

90.  Time   of   Filing   Pleadings,    110 

91.  Appearances,    Ill 

92.  Dilatory  Pleas,   Ill 

93.  Parties,    112 

94.  Proper  Description  of  Parties, 112 

95.  Parties  Complainants,   112 

96.  One  or  More  Parties  on  Behalf  of  All  Interested, 113 

97.  Those  in  Fiduciary  Capacity  as  Parties,  114 

98.  Joinder  of  Complainants;  Mis  joinder;  Striking  Out  Parties,  ..  114 

99.  Parties  Defendant,    115 

100.  Those  Who  Must  Be  Joined  as  Defendants, 120 

101.  Effect  of  Failure  to  Object  to  Proper  Parties,  120 

102.  New   Parties,    121 

103.  Intervention,    122 

104.  Time  for  Answer;  Extension  of  Time  for  Answer, 123 

105.  The  Answer,   123 

106.  Notice  in  the  Nature  of  Demurrer,  123 


XH  TABLE  OP  CONTENTS 

CHAPTER  VI — PLEADING  AND  PRACTICE  BEFORE  THE  COMMISSION — Continued. 

Page 

SEC.  107.  Pleading  Different  Defenses, 123 

108.  Effect  of  Answer  of  Part  Only  of  Petition, 125 

109.  Service   of   Answer,    125 

110.  Disclaimer,     125 

111.  Issues ;  Eeplication ;  Joinders  of  Issue, 125 

112.  Exceptions  to  Answer,   126 

113.  Joint  Answers,   126 

114.  Hearings,   127 

115.  Briefs, 127 

116.  Argument,    129 

117.  Copies  of  Testimony,    129 

118.  Motions,    129 

119.  Costs;  Counsel  Fees,  : 130 

120.  Practice  in  Separation  Cases,   130 

121.  Practice  in  Applications  for  Belief  under  the  Long  and  Short 

Haul  Section,    137 

122.  Dismissal  of  Cases  at  the  Bequest  of  the  Parties, 138 

123.  Bef und  of  Overcharges  through  Error,  138 

124.  Orders  of  the  Commission, 139 

125.  Duration    of    Orders,    140 

CHAPTER  VII — EVIDENCE  BEFORE  COMMISSION: 

SEC.  126.  Application  of  the  Bules  of  Evidence,   143 

127.  Judicial    Notice,    144 

128.  Nature  of  Testimony  before  the  Commission, 145 

129.  Qualification  of  Witnesses,    147 

130.  Subpoena  Duces  Tecum,   148 

131.  Evidence  under  the  Pleadings,   149 

132.  Best  and  Secondary  Evidence,  150 

133.  Order  of  Evidence,   150 

134.  Burden  of  Proof,    151 

135.  Presumptions,    151 

136.  Estoppel,    153 

137.  Hearsay,    155 

138.  Exceptions  to   Evidence,    156 

139.  Documentary   Evidence,    156 

140.  Parol  or  Extrinsic  Evidence  Affecting  Writings, 156 

141.  Custom  and  Usage,    157 

142.  Notice  to  Produce,   158 

143.  Depositions,    158 

144.  Ex  parte  Affidavit,   159 

145.  Fees  of  Witnesses,    160 

146.  Immunity  of  Witnesses,    160 

147.  Adverse  Witnesses,    164 

148.  Examination  of  Witnesses,    164 

149.  Necessity  for  Proof,   165 

150.  The  Evidence  Bequired  in  Particular  Cases,  167 

CHAPTER  VIII — PROCEEDINGS  AFTER  ORDER: 

SEC.  151.  Proceedings  after  Order,  181 

152.  Behearings,    181 


TABLE  OF  CONTENTS 

CHAPTER  VIII — PROCEEDINGS  AFTER  ORDER— Continued. 

Page 
SEC.  153.  Modification  of  Orders,   184 

154.  Proceedings  after  Order  Granting  Belief, 185 

155.  Proceedings  after  Order  Dismissing  the  Petition, 186 

Part  II — Procedure  Before  the  Courts 

CHAPTER  IX — JURISDICTION  OF  COURTS  IN  INTERSTATE  COMMERCE: 

SEC.  156.  Jurisdiction  of  Federal  Courts, 191 

157.  Equitable  Jurisdiction  of  Federal  Courts  to  Protect  Interstate 

Commerce,    191 

158.  Jurisdiction  of  Courts  in  Interstate  Commerce  Cases,    193 

159.  Essentials  to  Confer  Jurisdiction  on  Federal  Courts,   196 

160.  Powers  Given  to  the  Federal  Courts  by  the  Interstate  Com- 

merce   Acts,    197 

161.  Jurisdiction  of  Circuit  Courts,  198 

162.  Jurisdiction  of  District  Courts,   200 

163.  Jurisdiction  of  Federal  Courts  in  Suits  for  Forfeiture, 202 

164.  Jurisdiction  in  Mandamus,    203 

165.  Jurisdiction  of  Federal  Courts  to  Enjoin,  Set  Aside,  Annul  or 

Suspend  Order  of  the  Commission,   205 

166.  Jurisdiction  to  Enjoin  Eates  Effective  in  the  Future, 207 

167.  Jurisdiction  over  Crimes  and  Offenses,   210 

168.  Venue  of  Actions  in  the  Federal  Courts,  229 

169.  Jurisdiction  Not  Conferred  by  Consent,    233 

170.  Jurisdiction   on   Removal,    233 

171.  Nature  of  the  Jurisdiction  of  the  Federal  Courts  in  Civil  Cases 

Brought  to  Enforce  an  Order  of  the  Commission,  234 

172.  Limitations  of  Actions  before  the  Courts,   238 

173.  Expedition  of  Suits,   239 

174.  Contempt  of  Order  to  Appear  before  the  Commission, 240 

175.  Jurisdiction  and  Power  of  Federal  Courts  to  Grant  Injunc- 

tions,     241 

CHAPTER  X — PLEADING  AND  PRACTICE  BEFORE  THE  FEDERAL  COURTS  IN  INTERSTATE 
COMMERCE  CASES: 

SEC.  176.  Pleadings,    245 

177.  Parties  in  Proceedings  before  the  Court,  246 

178.  Requisites  of  a  Bill  to  Enforce  an  Order  of  the  Commission,  . .  248 

179.  Requisites  of  a  Bill  to  Enjoin,  Set  Aside,  or  Annul  an  Order 

of  the  Commission,   248 

180.  Requisites  of  a  Bill  to  Enjoin  a  Rate  or  Practice  Effective  in 

the  Future,   250 

181.  Answers,     250 

182.  Practice,   251 

183.  Certificate  of  General  Public  Importance, 252 

184.  Assigning  Claims,    253 

185.  Practice  in  Injunction,    253 

186.  Leave  of  Court  not  Necessary  to  Sue  Receiver, 254 

187.  Removal  of  Causes  from  State  Court  to  Federal  Court, 255 

188.  Special  Counsel,   255 

189.  Attorney's  Fees,    , , . . ,  255 


XIV  TABLE  OP  CONTENTS 

CHAPTER  XI — EVIDENCE  BEFORE  THE  COURTS  : 

Page 

SEC.  190.  Bules  of  Evidence  Prescribed  by  the  Acts, 257 

191.  Competency   of   Witnesses,    258 

192.  Compelling  Attendance  of  Witnesses  before  Commission, 258 

193.  Evidence  in  Civil  and  Criminal  Cases,  259 

194.  Immunity  of   Witnesses,    261 

195.  Weight  of  Evidence  of  Opinion  of  Commission, 262 

196.  Introduction  into  Court  of  Testimony  Given  Before  the  Com- 

mission,      263 

197.  Certified  Copies  to  be  Admitted  as  Evidence, 263 

198.  Judicial  Notice  of  Seal  of  Commission,  264 

199.  Accident  Reports  Not  to  be  Used  as  Evidence, 264 

200.  Fees  of  Witnesses,   264 

CHAPTER  XII — APPEAL  AND  ERROR: 

SEC.  201.  Appeal  in  Criminal  Cases,   265 

202.  Appeals  Direct  to  the  Supreme  Court, 265 

203.  Appeals  to  the  Circuit  Court  of  Appeals,  267 

204.  Costs  on  Appeal,   268 


Appendix 

The  Acts  to  Eegulate  Commerce,  271 

Digest  of  the  Act  to  Eegulate  Commerce,  272 

The  Act  to  Eegulate  Commerce, 279 

The  Immunity  Act,  300 

Act  Defining  Eight  of  Immunity,   301 

Digest  of  Elkins'  Law, 302 

The  Elkins'  Law,   303 

Expediting  Act,   307 

Street  Eailways  in  the  District  of  Columbia,   308 

Excerpts  from  Administrative  Eulings  and  Opinions, 309 

Forms  for  Use  Before  the  Commission,  315 

Forms  for  Use  Before  the  Courts, 339 

Eules  of  Practice  Before  the  Commission, 374 

Methods  of  Ascertaining  Cost  of  Carriage,   382 

Correct  Titles  of  the  Leading  Eailroads,   391 

Bibliography, 395 

Table  of  Cases, 399 


PART     I 
Procedure  Before  the  Interstate  Commerce  Commission 


CHAPTER  I 
INTRODUCTION 


Sec.  1.  Genesis  of  the  Interstate  Commerce  Commission. — The  Inter- 
state Commerce  Commission  was  created  by  "An  act  to  regulate  com- 
merce," approved  February  4,  1887  (24  Stat.  L.,  379).  By  this  act,1 
the  Commission  consisted  of  5  Commissioners  appointed  by  the  Presi- 
dent by  and  with  the  advice  and  consent  of  the  Senate.  Prior  to  the 
amendment  of  March  2,  1889  (25  Stat.  L.,  855)  the  Commission  re- 
ported annually  to  the  Secretary  of  the  Interior  and  it  was  considered 
and  deemed  a  part  of  that  Executive  Department.  By  the  act  just 
mentioned,  which  is  still  in  force  and  effect,  the  Commission  is  re- 
quired on  or  before  the  1st  day  of  December  in  each  year  to  make  a 
report  direct  to  the  Congress.  This  change  segregated  the  Commis- 
sion from  the  Interior  Department,  and  since  1889  it  has  been  an  in- 
dependent organization,  not  attached  to  or  forming  a  part  of  any  of 
the  Executive  Departments.  It  is,  in  theory,  responsible  only  to  the 
Congress,  to  which  it  is  directed  to  report. 

The  amending  statute,  approved  June  29,  1906,  increased  the  num- 
ber of  Commissioners  to  7,  appointed  for  a  term  of  seven  years,  one 
retiring  each  year,  and  each  receiving  an  annual  salary  of  $10,000. 

The  present  Commissioners2  are  Martin  A.  Knapp,  of  New  York, 
chairman;  Judson  C.  Clements,  of  Georgia;  Charles  A.  Prouty,  of 
Vermont;  Francis  M.  Cockrell,  of  Missouri;  Franklin  K.  Lane,  of 
California;  Edgar  E.  Clark,  of  Iowa,  and  James  S.  Harlan,  of  Illi- 
nois. 

The  name  "Interstate  Commerce  Commission"  may  convey  the  im- 

1  The  act  was  modeled  upon  the  following  English  acts :  The  railway  and 
canal  traffic  act,  1854,  (17  and  18  Viet.,  c.  31),  and  The  regulation  of  railways 
act,  1868,  (31  and  32  Viet.,  c.  119),  and  The  regulation  of  railways  act,  1873. 
(36  and  37  Viet.,  c.  48).  Previous  legislation  under  the  commerce  clause  of  the 
Constitution  was  act  of  Mar.  3,  1873  (now  sees.  4386-4390  E.  S.  U.  S.),  relating 
to  the  transportation  of  live  stock;  act  of  June  15,  1866  (now  sec.  5258  E.  S. 
U.  S.),  permitting  carriers  by  rail  to  form  continuous  lines;  act  of  May  29, 
1884,  prohibiting  interstate  transportation  by  railroads  of  livestock  afflicted  with 
contagious  diseases. 

•  The  first  Commission  consisted  of  Thomas  M.  Cooley,  of  Michigan,  chairman ; 
William  E.  Morrison,  of  Illinois;  Augustus  Shoonmaker,  of  New  York;  Aldace 
F.  Walker,  of  Vermont,  and  Walter  L.  Bragg,  of  Alabama.  Others  who  have 
served  on  the  Commission  are  Wheelock  G.  Veazey,  of  Vermont;  James  W.  Mc- 
Dill,  of  Iowa;  James  D.  Yeomans,  of  Iowa;  William  J.  Calhoun,  of  Illinois,  and 
Joseph  W.  Fifer,  of  Illinois. 


4  INTRODUCTION 

pression  that  all  or  a  large  part  of  the  power  granted  to  the  Congress 
by  the  Constitution  *  is  vested  in  that  body.  Such  is  not  the  case.  As  a 
matter  of  fact  very  general  provisions  for  the  regulation  of  interstate 
commerce  are  confided  by  law  to  the  Department  of  Commerce  and 
Labor*  and  are  exercised  by  it  through  the  Bureau  of  Corporations, 
Bureau  of  Navigation,  Light-House  Board,  Steamboat  Inspection  Serv- 
ice, and  like  agencies  of  the  Government.  The  commerce  regulated 
by  the  act  to  regulate  commerce  and  subject  to  the  control  of  the  In- 
terstate Commerce  Commission,  is  confined  to  that  large  body  of 
interstate  commerce  dependent  upon  railroads  for  its  movement,  or, 
under  the  act  of  June  29,  1906,'  upon  certain  carriers  whose  operation 
is  closely  allied  to  carriers  by  rail  and  upon  pipe  lines. 

The  causes  leading  up  to  the  passage  of  the  original  act  to  regulate 
commerce  were  judicially  stated  by  the  Supreme  Court  in  I.  C.  C.  v. 
C.  N.  0.  &  T.  P.  B.  Co.  (167  U.  S.,  479),  as  follows: 

Before  the  passage  of  the  act  [to  regulate  commerce]  it  was  generally  be- 
lieved that  there  were  great  abuses  in  railroad  management  and  railroad  trans- 
portation, and  the  grave  question  which  Congress  had  to  consider  was  how  these 
abuses  should  be  corrected  and  what  control  should  be  taken  of  the  business  of 
euch  corporations. 

The  complaints  against  the  then  existing  railway  management  were 
thus  stated  in  the  report  of  the  Senate  Select  Committee  on  Inter- 
state Commerce  (Cullom  Committee),  submitted  to  the  Senate  Janu- 
ary 18,  1886  (p.  180) : 

1.  That  local  rates  are  unreasonably  high,  compared  with  through  rates. 

2.  That  both  local  and  through  rates  are  unreasonably  high  at  noncompeting 
points,  either   from   the   absence   of   competition   or  in   consequence   of   pooling 
agreements  that  restrict  its  operation. 

3.  That  rates  are  established  without  apparent  regard  to  the  actual  cost  of 
the  service  performed,  and  are  based  largely  on  "what  the  traffic  will  bear." 

4.  That  unjustifiable  discriminations  are  constantly  made  between  individuals 
in  the  rates  charged  for  like  service  under  similar  circumstances. 

5.  That   improper   discriminations  are  made  between  articles   of   freight   and 
branches  of  business  of  a  like  character,  and  between  Jifferent  quantities  of  the 
same  class  of  freight. 

6.  That    unreasonable    discriminations    are    made    between    localities    similarly 
situated. 

7.  That  the  effect  of  the  prevailing  policy  of  railroad  management  is,  by  an 
elaborate  system  of  secret  special  rates,  rebates,  drawbacks  and  concessions,  to 
foster  monopoly,  to  enrich  favored  shippers,  and  to  prevent  free  competition  in 
many  lines  of  trade  in  which  the  item  of  transportation  is  an  important  factor. 

'Constitution  (art.  I,  sec.  8,  Cl.  3):  "The  Congress  shall  have  power  *  *  * 
to  regulate  Commerce  with  foreign  Nations,  and  among  the  several  States  and 
with  the  Indian  Tribes." 

*  Established  by  act  of  Feb.  14,  1903  (32  Stat.  L.,  830). 

6 ' '  The  act  to  amend  an  act  entitled  '  An  act  to  regulate  commerce, '  approved 
Feb.  4,  1887,  and  all  acts  amendatory  thereof,  and  to  enlarge  the  powers  of  the 
Interstate  Commerce  Commission."  Approved  June  29,  1906  (34  Stat.  L.,  504). 


INTRODUCTION  5 

8.  That  such  favoritism  and  secrecy  introduce  an  element  of  uncertainty  into 
legitimate  business  that  greatly  retards  the  development  of  our  industries  and 
commerce. 

9.  That  the  secret  cutting  of  rates  and  the  sudden  fluctuations  that  constantly 
take  place  are  demoralizing  to  all  business  except  that  of  a  purely  speculative 
character,  and  frequently  occasion  great  injustice  and  heavy  losses. 

10.  That,  in  the  absence  of  national  and  uniform  legislation,  the  railroads  are 
able  by  various  devices  to  avoid  their  responsibility  as  carriers,  especially  on 
shipments  over  more  than  one  road,  or  from  one  State  to  another,  and  that  ship- 
pers find  great  difficulty  in  recovering  damages  for  the  loss  of  property  or  for  in- 
jury thereto. 

11.  That    railroads    refuse    to    be    bound   by   their    own    contracts,    and   arbi- 
trarily collect  large  sums  in  the  shape  of  overcharges  in  addition  to  the  rates 
agreed  upon  at  the  time  of  shipment. 

12.  That  railroads  often  refuse  to  recognize  or  be  responsible  for  the  acts  of 
dishonest  agents  acting  under  their  authority. 

13.  That  the  common  law  fails  to  afford  a  remedy  for  such  grievances,  and 
that  in  cases  of  dispute  the  shipper  is  compelled  to  submit  to  the  decision  of 
the  railroad  manager  or  pool  commissioner,  or  run  the  risk  of  incurring  further 
losses  by  greater  discriminations. 

14.  That  the  differences  in  the  classifications  in  use  in  various  parts  of  the 
country,  and  sometimes  for  shipments  over  the  same  roads  in   different  direc- 
tions, are  a  fruitful  source  of  misunderstandings  and  are  often  made  a  means 
of  extortion. 

15.  That  a  privileged  class  is  created  by  the  granting  of  passes,  and  that 
the  cost   of  the   passenger  service  is  largely  increased  by  the  extent   of  this 
abuse. 

16.  That  the  capitalization  and  bonded  indebtedness  of  the  roads  largely  ex- 
ceed the  actual  cost  of  their  construction  or  their  present  value,  and  that  un- 
reasonable rates  are  charged  in  the  effort  to  pay  dividends  on  watered  stock 
and  interest  on  bonds  improperly  issued. 

17.  That  railroad  corporations  have  improperly  engaged  in  lines  of  business 
entirely  distinct  from  that  of  transportation,  and  that  undue  advantages  have 
been  afforded  to  business  enterprises  in  which  railroad  officials  were  interested. 

18.  That  the  management  of  the  railroad  business  is  extravagant  and  waste- 
ful, and  that  a  needless  tax  is  imposed  upon  the  shipping  and  traveling  public 
by  the  unnecessary  expenditure  of  large  sums  in  the  maintenance  of  a  costly 
force  of  agents  engaged  in  a  reckless  strife  for  competitive  business. 

The  idea  of  a  commission  in  connection  with  the  creation  and 
affirmance  of  rights  and  as  contradistinguished  from  a  court,  the 
commission  to  have  power  to  investigate  complaints  of  shippers  and  to 
secure  information  from  which  to  recommend  additional  legislation, 
came  from  the  then  existing  railway  commissions  in  the  various 
States  and  Territories.  In  1886  there  were  38  States  and  8  Terri- 
tories, 46  in  all.  In  10  States  and  6  Territories  there  was  then  in 
force  no  regulation  of  carriers,  or  practically  none.  These  States  and 
Territories  were  Arkansas,  Delaware,  Florida,  Indiana,  Louisiana, 
Maryland,  Pennsylvania,  New  Jersey,  Tennessee  and  "West  Virginia 
(States),  and  Arizona,  Idaho,  New  Mexico,  Washington  and  Utah 
(Territories).  In  the  remaining  30  States  and  Territories,  all  of 


6  INTRODUCTION 

which  had  some  regulation  of  carriers,  the  commission  system  had 
been  adopted  by  25,  but  Nevada,  North  Carolina,  Oregon,  Texas,  and 
Montana  depended  on  legislative  restrictions  and  no  special  means  for 
their  enforcement  had  been  provided. 

The  following  States  and  Territories  had  railroad  commissions  in 
1886,  the  date  of  their  establishment  being  as  indicated :  New  Hamp- 
shire, 1844;  Connecticut,  1853;  Vermont,  1855;  Maine,  1858;  Ohio, 
1867 ;  Massachusetts,  1869 ;  Illinois,  1871 ;  Rhode  Island,  1872 ;  Michi- 
gan, 1873;  Wisconsin  and  Minnesota,  1874;  Missouri,  1875;  Cali- 
fornia and  Virginia,  1876;  Iowa  and  South  Carolina,  1878;  Georgia, 
1879;  Kentucky,  1880;  Alabama,  1881;  New  York,  1882;  Kansas, 
1883;  Mississippi,  1884;  Nebraska,  Colorado,  and  Dakota  Territory, 
1885. 

The  difficulty  experienced  by  the  user  of  transportation  facilities  in 
enforcing  his  common-law  rights  and  of  the  necessity  for  some  addi- 
tional remedy,  such  as  the  commission  system,  was  stated  by  the  re- 
port of  the  Georgia  Railway  Commission  in  its  report  for  1881,  as 
follows : 

Prior  to  the  act  of  1879  [the  act  creating  the  Georgia  commission]  the  com- 
mon-law right  of  the  citizen  to  be  protected  against  extortion  and  unjust  dis- 
crimination existed  in  its  full  force,  but  the  remedy  for  its  violation  was  wholly 
inadequate.  Practically  the  citizen  had  no  rights,  though  his  theoretical  right 
was  ample  and  complete. 

The  rights  of  the  railroad  companies  were  well  defined  enough,  and  their 
remedies  also  were  adequate,  being  in  their  own  hands.  It  was  their  capacity 
for  abusing  their  powers  which  was  not  sufficiently  held  in  check.  *  *  * 

So  unequally  were  the  parties  matched  that  in  the  whole  history  of  the  State 
there  has  been  (so  far  as  we  remember)  not  one  single  case  of  a  suit  by  a  citi- 
zen to  enforce  this  common-law  right — and  but  one  to  enforce  even  a  statutory 
right  for  an  overcharge.  In  that  case  the  charter  of  the  railroad  in  express 
terms  limited  the  rates,  yet  the  railroad  fixed  its  rates  beyond  the  chartered 
limit,  printed  them  and  collected  them,  and  was  checked  by  this  suit. 

A  remarkable  commentary  on  the  absolute  worthlessness  of  rights  without 
remedies. 

The  character  of  the  State  railroad  commissions,  their  varying 
powers  and  their  effect  upon  railway  management  was  thus  stated 
by  the  special  committee  of  the  Senate  (Cullom  committee)  in  its  re- 
port in  1886  (p.  64) : 

The  State  railroad  commissions,  which  are  to-day  a  recognized  factor  in  rail- 
way administration,  have  come  into  existence  and  prominence  within  the  last 
ten  or  fifteen  years,  although  there  were  so-called  commissions  at  an  earlier 
period.  New  York  had  a  short-lived  one  in  1855,  and  after  the  civil  war  several 
were  created  for  a  temporary  purpose,  distinct  from  regulation,  such  as  that  in 
Arkansas,  which  passed  upon  applications  for  State  aid  to  railroads,  and  that 
in  Tennessee,  in  1870,  which  was  authorized  to  sell  or  lease  railroads  in  default 
to  the  State  for  loans.  There  are  marked  differences  in  the  plan  upon  which 
the  existing  State  commissions  are  organized.  Of  the  older  ones,  those  of  the 
New  England  States,  with  the  exception  of  Massachusetts  and  New  Hampshire, 


form  a  distinct  class  by  themselves,  their  duties  being  mainly  limited  to  the  in- 
spection of  the  railway  equipment  and  service. 

Of  an  entirely  different  type  were  the  commissions  of  the  Western  States,  which 
owed  their  origin  to  the  wide  spread  " granger"  movement.  Whatever  may  be 
said  of  the  character  of  the  legislation  inspired  by  that  agitation,  it  certainly 
served  a  timely  and  useful  purpose  in  its  day,  and  substantial  and  beneficial  re- 
sults must  be  accredited  to  that  popular  uprising  against  the  railroad  corpora- 
tions. Matters  had  reached  such  a  pass  that  nothing  short  of  the  sturdy,  force- 
ful methods  adopted  in  Illinois  and  in  neighboring  States  could  have  allayed  the 
gathering  storm  of  public  indignation  which  the  then  existing  methods  of  man- 
agement had  aroused.  But  when,  in  the  notable  "granger  cases,"  the  United 
States  Supreme  Court  upheld  those  methods  and  left  the  railroads  at  the  mercy 
of  the  State  legislatures,  the  corporations  assumed  a  radically  different  attitude 
toward  the  community  and  toward  the  law-making  power.  They  have  since  been 
more  ready  to  recognize  their  public  obligations,  greater  respect  for  public  opinion 
is  manifested,  and  in  consequence  the  recommendations  of  the  State  commissions, 
which  were  at  first  contemptuously  ignored,  have  since,  as  a  rule,  been  complied 
with.  This  radical  change  of  policy,  not  adopted  voluntarily,  but  prompted  solely 
by  motives  of  self-interest,  has  been  taken  advantage  of  by  the  State  commis- 
sions with  acknowledged  favorable  results,  chief  among  which  have  been  the 
cultivation  of  a  better  understanding  and  state  of  feeling  between  the  railroads 
and  the  people,  and  a  sufficient  mitigation  of  the  local  abuses  most  prevalent  to 
sensibly  diminish  the  volume  of  complaint. 

Sec.  2.  Qualifications  of  the  Commission. — In  order  to  be  eligible 
Commissioners  shall  not  be  in  the  employ  of,  or  hold  any  official  re- 
lation to,  any  common  carrier  subject  to  the  provisions  of  the  act  to 
regulate  commerce,  or  own  stock  or  bonds  therein,  or  in  any  manner 
be  pecuniarily  interested  in  such  common  carriers.  It  is  further  pro- 
vided that  the  Commissioners  shall  not  engage  in  any  other  business, 
vocation  or  employment.  Not  more  than  four  of  the  Commissioners 
shall  belong  to  one  political  party. 

Commissioners  may  be  removed  by  the  President  for  inefficiency, 
neglect  of  duty,  or  malfeasance  in  office. 

Sec.  3.  Divisions  in  the  Office  of  the  Commission. — For  the  purpose 
of  conducting  the  business  of  the  Commission  expeditiously  several 
divisions  have  been  provided  for,  including  the  operating  division, 
division  of  prosecutions,  safety  appliance  division,  division  of  statis- 
tics and  accounts,  and  division  of  tariffs  and  transportation. 

Sec.  4.  Operating  division. — The  operating  division  has  charge  of 
the  correspondence  of  the  Commission  with  shippers  and  carriers. 
For  the  purpose  of  promptly  answering  inquiries  coming  from  va- 
rious sections  of  the  country,  certain  States  have  been  assigned  to  the 
several  Commissioners  and  correspondence  relating  to  them  is  con- 
ducted by  a  particular  Commissioner.  The  grouping  of  these  States 
for  the  purpose  of  correspondence  should  not  be  confused  with  either 
the  statistical  grouping  (see  sec.  10,  post),  or  the  assigning  of  cases 
to  the  several  Commissioners  for  decision. 


8  INTRODUCTION 

"When  cases  are  at  issue  and  ready  for  hearing  they  are  assigned  to 
the  several  Commissioners  by  lot.  Correspondence  preliminary  to 
filing  a  case  may  therefore  be  with  one  Commissioner,  while  the  case 
may  be  assigned  for  hearing  and  decision  to  another. 

Correspondence  with  the  Commission  ought  to  be  addressed  to  the 
Commission  at  its  office,  American  National  Bank  Building,  1317  F 
street  northwest,  Washington,  D.  C.,  unless  specific  directions  other- 
wise have  been  made.9  Correspondence  by  carriers  or  corporations 
having  several  officials  ought  to  be  conducted  by  them  with  as  few 
of  the  officials  as  possible,  in  conformity  with  Administrative  Rules 
and  Opinions,  No.  79  (issued  Nov.  16,  1906). T 

Sec.  5.  Law  division. — The  law  division  has  general  supervision  of 
the  legal  force  and  staff  of  the  Commission  for  the  usual  business  and 
also  when  the  Commission  is  a  party  to  proceedings  in  the  Federal 
courts.  The  legal  staff  consists  of  a  solicitor  and  a  number  of  attor- 
neys regularly  employed  by  the  Commission  and  at  times  special  coun- 
sel employed  for  particular  cases. 

Sec.  5a.  Claims  division. — This  division  "is  charged  with  the  in- 
vestigation of  claims  involving  reparation  by  the  carrier  to  the  ship- 
per on  account  of  alleged  overcharge  due  to  the  application  of  exces- 
sive and  unreasonable  rates,  misrouting,  etc.,  which  may  be  settled  on 
informal  complaint  and  are  adjustable  under  the  rules  promulgated 
by  the  Commission." 

Sec.  6.  Division  of  prosecutions. — The  division  of  prosecutions,  some- 
times called  the  ' '  rebate  division, ' '  takes  charge  of  investigations  into 
alleged  criminal  violations  of  the  act.  Upon  receipt  of  information 
indicating  criminal  infraction  of  the  interstate  commerce  law,  this 
division  makes  such  investigations  as  may  be  thought  needful  to  de- 
termine whether  or  not  the  matter  is  one  proper  to  be  brought  to  the 
attention  of  the  Department  of  Justice.  If  this  question  be  resolved 
in  the  affirmative,  the  division  prepares  the  case  for  presentation 
through  the  Department  of  Justice  to  the  United  States  attorney  in 
the  district  having  jurisdiction. 

Sec.  7.  Safety  appliance  division. — The  division  of  safety  appliances 
has  charge  of  the  alleged  violations  of  the  safety  appliance  acts,8  and 
for  the  purpose  of  detecting  violations  employs  inspectors.  An  attor- 

•  Rules  of  Practice,  rule  XXI.    See  Appendix. 

T  Tariff  Circular  No.  15-A,  effective  Apr.  15,  1908,  p.  82. 

•An  act  to  promote  the  safety  of  employees  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  commerce  to  equip  their  cars 
with  automatic  couplers  and  continuous  brakes  and  their  locomotives  with  driv- 
ing-wheel brakes,  and  for  other  purposes,  approved  Mar.  2,  1893  (27  Stat.  L., 
531;  2  Supp.  E.  S.,  102),  as  amended  by  an  act  approved  Apr.  1,  1896  (29  Stat. 
L.,  85;  2  Supp.  E.  S.,  455),  and  an  act  to  amend  an  act  entitled  "An  act  to 
promote  the  safety  of  employees  and  travelers,  and  so  forth,"  approved  Mar.  2, 
1893,  and  amended  Apr.  1,  1896,  approved  Mar.  2,  1903  (32  Stat.  L.,  943),  and 


INTRODUCTION 

ney,  employed  by  the  Commission,  is  especially  assigned  to  prosecute 
such  violations  of  these  acts. 

Sec.  8.  Division  of  statistics  and  accounts. — The  division  of  statis- 
tics and  accounts  has  charge  of  the  annual  reports  of  carriers  filed 
in  conformity  with  law  and  the  rules  of  the  Commission,  and  is  in 
charge  of  the  Statistician  of  the  Commission.  These  statistics,  when 
compiled,  are  published  in  "Statistics  of  Railways  in  the  United 
States,"  one  volume  appearing  annually. 

Sec.  9.  Division  of  tariffs  and  transportation. — The  division  of  tar- 
iffs and  transportation  has  charge  of  the  tariffs  and  schedules  required 
by  law  to  be  filed  with  the  Commission.  The  division  is  in  charge  of 
the  Auditor,  who  prepares,  at  the  direction  of  the  Commission  for  use 
in  court,  certified  copies  of  the  contents  of  tariffs,  and  also  furnishes, 
within  reasonable  bounds,  the  tariff  rates  applying  between  designated 
points. 

Sec.  10.  Statistical  groupings. — In  the  division  of  statistics  and  ac- 
counts, and  for  the  purpose  of  yearly  compiling  the  statistics  of  rail- 
ways, the  United  States  is  divided  into  10  territorial  groups.  These 
groups  do  not  correspond  with  the  divisions  of  the  country  by  which 
the  correspondence  is  assigned  to  the  several  members  of  the  Com- 
mission. The  territorial  groups  for  statistical  purposes  cover  in  a 
measure  the  railway  or  association  divisions  of  the  country. 

The  groups  or  territorial  divisions  for  statistical  purposes  are:" 

Group  I.  This  group  embraces  the  States  of  Maine,  New  Hampshire,  Vermont, 
Massachusetts,  Rhode  Island,  and  Connecticut. 

Group  II.  This  group  embraces  the  States  of  New  York,  Pennsylvania,  New 
Jersey,  Delaware,  and  Maryland,  exclusive  of  that  portion  of  New  York  and 
Pennsylvania  lying  west  of  a  line  drawn  from  Buffalo  to  Pittsburg  via  Salamanca, 
and  inclusive  of  that  portion  of  West  Virginia  lying  north  of  a  line  drawn  from 
Parkersburg  east  to  the  boundary  of  Maryland. 

Group  III.  This  group  embraces  the  States  of  Ohio,  Indiana,  the  southern 
peninsula  of  Michigan,  and  that  portion  of  the  States  of  New  York  and  Penn- 
sylvania lying  west  of  a  line  drawn  from  Buffalo  to  Pittsburg  via  Salamanca. 

Group  IV.  This  group  embraces  the  States  of  Virginia,  North  Carolina,  South 
Carolina,  and  that  portion  of  the  State  of  West  Virginia  lying  south  of  a  line 
drawn  east  from  Parkersburg  to  the  boundary  of  Maryland. 

Group  V.  This  group  embraces  the  States  of  Kentucky,  Tennessee,  Mississippi, 
Alabama,  Georgia,  Florida,  and  that  portion  of  Louisiana  east  of  the  Mississippi 
Eiver. 

Group  VI.  This  group  embraces  the  States  of  Illinois,  Wisconsin,  Iowa,  Minne- 
sota, the  northern  peninsula  of  the  State  of  Michigan,  and  that  portion  of  the 
States  of  North  Dakota,  South  Dakota,  and  Missouri  lying  east  of  the  Missouri 
Eiver. 

Qroup  VII.  This  group  embraces  the  States  of  Montana,  Wyoming,  Nebraska, 
that  portion  of  North  Dakota  and  South  Dakota  Lying  west  of  the  Missouri 

an  act   authorizing  the  Commission   to   employ  safety-appliance   inspectors,   ap- 
proved June  28,  1902  (32  Stat.  L.,  444). 
9  Tenth  annual  report,  p.  97. 


10  INTRODUCTION 

River,  and  that  portion  of  the  State  of  Colorado  lying  north  of  a  line  drawn 
east  and  west  through  Denver. 

Group  VIII.  This  group  embraces  the  States  of  Kansas,  Arkansas,  that  por- 
tion of  the  State  of  Missouri  lying  south  of  the  Missouri  River,  that  portion  of 
the  State  of  Colorado  lying  south  of  a  line  drawn  east  and  west  through  Denver, 
that  portion  of  the  State  of  Texas  lying  west  of  Oklahoma,  and  the  Territories 
of  Oklahoma,  Indian  Territory,  and  the  portion  of  New  Mexico  lying  northeast 
of  Santa  Fe. 

Group  IX.  This  group  embraces  the  State  of  Louisiana,  exclusive  of  the  por- 
tion lying  east  of  the  Mississippi  River,  the  State  of  Texas,  exclusive  of  that 
portion  lying  west  of  Oklahoma,  and  the  portion  of  New  Mexico  lying  southeast 
of  Santa  Fe. 

Group  X.  This  group  embraces  the  States  of  California,  Nevada,  Oregon, 
Idaho,  Utah,  Washington,  the  Territory  of  Arizona  and  that  portion  of  the 
Territory  of  New  Mexico  lying  southwest  of  Santa  Fe. 

Sec.  11.  Decisions  of  the  Commission. — The  cases  decided  by  the 
Commission  now  cover  13  volumes,  the  first  11  of  which  were 
privately  published,10  but  beginning  with  volume  12  the  decisions  were 
published  by  the  Government,  and  may  be  obtained  from  the  Super- 
intendent of  Documents,  Government  Printing  Office,  Washington, 
D.  C.  The  reported  decisions  of  the  Commission  should  not  be  con- 
fused with  the  Annual  Reports  u  of  the  Commission.  The  latter  are 
the  reports  of  the  Commission  to  the  Congress,  and  while  they  include 
reference  to  the  more  important  cases  decided  by  the  Commission  in 
the  preceding  year,  the  decisions  are  not  therein  reported  in  full,  as 
in  the  former.  These  reports  of  decisions  are  cited  as  "I.  C.  C.," 
"Int.  Com.  Rep.,"  or  "Inters-Corn.  Rep." 

The  official  reports  of  the  decisions  of  the  Commission  are : 

Interstate  Commerce  Commission  Reports,  5  volumes,  1887-1893, 
published  by  Strouse  &  Co.,  New  York. 

Interstate  Commerce  Reports,  6  volumes,  1893-1906,  published  by 
The  Lawyers'  Co-operative  Publishing  Co.,  Rochester,  N.  Y. 

Interstate  Commerce  Commission  Reports,  2  volumes.  (Volumes 
XII  and  XIII)  published  by  the  Government  Printing  Office,  Wash- 
ington, D.  C.,  containing  the  decisions  from  1906  to  date  and  to  con- 
tinue. 

While  the  early  decisions  of  the  Commission  published  by  The 
Lawyers'  Co-operative  Publishing  Company  (volumes  I-IV)  contain- 
ing, in  addition  to  the  decisions  of  the  Commission,  some  of  the 

10  The  Lawyers'  Co-operative  Publishing  Co.  (Rochester,  N.  Y.).  The  same  com- 
pany published  in  1896  an  additional  volume,  being  volume  V,  Decisions  on  In- 
terstate Commerce  Rendered  by  the  Federal  and  State  Courts.  Five  volumes  of 
the  decisions  of  the  Commission  were  published  by  Strouse  &  Co.  These  cover 
the  decisions  from  1887  to  1893,  under  the  title  "Interstate  Commerce  Commis- 
sion Reports"  and  are  official. 

The  volumes  printed  by  the  Government  are  entitled  "Interstate  Commerce 
Commission  Reports." 

u  The  first  four  annual  reports  are  reprinted  in  the  decisions  of  the  Commis- 
sion, published  by  Strouse  &  Co. 


INTRODUCTION  11 

pleadings  and  evidence  in  cases  and  as  well  the  first  four  Annual 
Keports  of  the  Commission,  are  not  official  within  the  meaning  of 
section  14  of  the  act,  so  that  they  are  competent  evidence  in  all  courts 
of  the  United  States  and  of  the  several  States  without  any  further 
proof  or  authentication,  they  are  in  general  use  and  frequently  cited. 

The  citations  in  this  work  are  to  the  official  editions :  The  Strouse 
edition,  volumes  I-V;  Lawyers'  Co-operative  edition,  volumes  VI-XI; 
Government  Printing  Office  edition,  volumes  XII-XIII,  and  Advance 
Sheets,  volume  XIV. 

Sec.  12.  Annual  Reports  of  the  Commission. — The  Annual  Reports 
of  the  Commission  contain,  in  conformity  with  law,  much  "in- 
formation and  data  collected  by  the  Commission  as  may  be  considered 
of  value  in  the  determination  of  questions  connected  with  the  regu- 
lation of  commerce,  together  with  such  recommendations  as  to  addi- 
tional legislation  relating  thereto  as  the  Commission  may  deem  neces- 
sary." These  reports  are  valuable  in  that  they  review13  yearly  the 
decisions  of  the  courts  wherein  they  affect  the  powers  or  the  work  of 
the  Commission,  or  the  commerce  clause  of  the  Constitution.  They 
are  also  valuable  in  that  in  them  is  to  be  found  an  official  discussion 
of  the  various  transportation  problems  of  our  economic  development. 
Speaking  generally  these  reports  are  the  most  valuable  of  the  publi- 
cations of  the  Commission. 

Sec.  13.  Administrative  rulings  and  opinions. — The  Commission  has 
deemed  it  necessary  from  time  to  time  beginning  with  the  last  amend- 
ment to  the  act,  in  1906,  to  make  certain  rulings  and  opinions  involving 
the  construction  and  interpretation  of  the  law.  The  necessity  for 
these  rulings  and  opinions  arises  largely  from  the  fact  that  any  vio- 
lation of  the  act  is  made  a  misdemeanor  and  punishable.  Parties  un- 
certain of  the  meaning  and  intent  of  the  act  have  applied  to  the  Com- 
mission for  advice  in  numerous  instances,  and  the  Commission  has 
made  certain  general  rules  concerning  routing,  joint  rates,  passes, 
etc.  These  rules  are  for  the  guidance  of  shippers  and  carriers,  and  in 
addition  to  indicating  what  the  Commission  consider  a  violation  of  the 
law,  assist  materially  to  an  understanding  of  the  intent  of  the  law.n 

In  the  Twenty-first  Annual  Report,  the  Commission  referred  to  its 
practice  of  making  Administrative  Rulings,  as  follows  (p.  5) : 

12  These  reports  contain  syllabi  of  the  decisions  of  the  Commission  in  cases  de- 
cided by  them;  the  report  for  1904  contains  syllabi  of  all  previously  decided 
cases;  subsequent  reports  contain  the  syllabi  for  cases  decided  during  the  pre- 
vious year  only. 

"The  Executive  Departments  will  not  ordinarily  make  a  ruling  interpreting  a 
law,  but  leave  to  one  interested  to  place  his  own  construction  upon  it.  A  notable 
instance  of  the  custom  is  to  be  found  in  the  record  of  the  first  conviction  under 
the  pure  drugs  act;  the  manufacturer  of  a  remedy  asked  whether  or  not  the 
label  on  the  package  was,  in  the  judgment  of  the  department,  a  compliance  with 
the  law;  no  information  was  given  him,  but  a  prosecution  was  brought.  (TL  S. 
v.  Harper,  in  the  Police  Court  for  the  District  of  Columbia,  1908). 


12  INTRODUCTION 

A  considerable  part  of  the  time  has  been  occupied  in  giving  administrative 
construction  to  various  provisions  of  the  law  for  the  guidance  of  both  shippers 
and  carriers.  To  secure  the  best  results  of  legislation  with  the  least  possible 
delay  there  was  obvious  need  of  a  correct  and  uniform  interpretation  of  the 
statute.  Therefore,  without  reference  to  questions  arising  in  particular  cases, 
and  to  avoid  unnecessary  controversy,  it  has  seemed  our  duty  to  construe  the  law 
in  advance  wherever  it  appeared  obscure  or  ambiguous,  so  that  the  obligations 
of  the  railroads  and  the  rights  of  the  public  might  be  promptly  understood. 
This  has  resulted  in  numerous  rulings  explaining  our  view  of  the  meaning  and 
application  of  different  sections  and  paragraphs  of  the  statute.  These  rulings 
have  in  practically  every  instance  been  accepted  by  the  carriers,  even  in  cases 
where  their  legal  advisers  were  not  entirely  in  accord  with  the  opinion  of  the 
Commission.  The  rulings  and  regulations  already  promulgated  will  be  revised 
and  printed  in  a  separate  document. 

The  benefits  of  this  course  are  beyond  question.  The  Commission  has  en- 
deavored to  adopt  a  workable  construction  of  the  law  in  all  cases,  and  has  as  a 
rule  announced  its  conclusions  in  matters  of  importance  only  after  conference  and 
discussion  with  representative  shippers  and  traffic  officials. 

The  list  of  the  subjects  concerning  which  administrative  rulings  and 
opinions  have  been  made  will  be  found  in  section  67,  post,  and  those 
which  deal  with  the  jurisdiction  of  and  procedure  before  the  Com- 
mission are  reproduced  in  the  Appendix. 

Sec.  14.  Publications  of  the  Commission. — The  more  important  pub- 
lications of  the  Commission  are : 
Annual  Reports,  22  vols.,  1888-1908. 

Statistics  of  Railways  in  the  United  States,  20  vols.,  1888-1908. 
Proceedings  National  Association  of  Railway  Commissioners,   20  vols.,   1889- 
1908. 

Railways  in  the  United  States  in  1902.     (Parts  II,  IV,  V.)  M 

Part  II.  A  forty-year  review  of  changes  in  freight  tariffs.     Prepared  by  the 

Auditor  of  the  Commission. 
Part  IV.  State  regulation  of  railways.     Prepared  by  the  Statistician  to  the 

Commission. 

Part  V.  State  taxation  of  railways  and  other  transportation  agencies.     Pre- 
pared by  the  Statistician  to  the  Commission. 

Interstate  Commerce  Law  as  changed  by  the  act  of  June  29,  1906." 
Tariff  Circular  15-A,  containing  regulations  governing  the  construction  and  filing 
of  freight  tariffs  and  classifications  and  passenger  fare  schedules;   also  admin- 
istrative rulings  and  opinions. 

Bulletin  No.  1.  Conference  rulings  of  the  Commission. 

Tariff  Circular  16- A,  containing  regulations  governing  the  construction  and  filing 
of  classifications  and  tariffs  of  express  companies;    also  administrative  rulings 
and  opinions. 
Bulletin  No.  2.  Conference  rulings  of  the  Commission. 

Sec.  15.  Sessions  of  the  Commission. — The  general  sessions  of  the 

11  Parts  I  and  III  have  never  been  published. 

"  Senate  Doc.  266,  59th  Cong.,  2d  sess.,  contains  in  parallel  columns  the  act 
to  regulate  commerce  and  similar  acts,  showing  the  former  acts  and  the  same 
as  amended  by  the  act  of  June  29,  1906;  the  compilation,  which  is  a  valuable  one 
for  reference,  is  by  C.  R.  Hillyer,  esq.,  of  the  Department  of  Commerce  and 
Labor. 


INTRODUCTION  13 

Commission  for  hearing  contested  cases,  including  oral  arguments,  are 
held  at  its  office  in  Washington  at  such  times  as  the  Commission  may 
designate.  Two  weeks,  beginning  with  the  first  Monday  of  each 
month,  are  set  aside  for  the  purpose  of  general  sessions." 

Special  sessions  are  held  outside  of  Washington  at  such  time  and 
place  as  the  business  of  the  Commission  may  warrant  and  as  it  may 
deem  expedient. 

Sec.  16.  Seal  of  the  Commission. — The  Commission  is  authorized 
by  section  17  of  the  act  to  regulate  commerce  to  have  an  official  seal, 
and  it  is  provided  that  this  seal  shall  be  judicially  noticed. 

Sec.  17.  Secretary  of  the  Commission. — Under  the  act  to  regulate 
commerce,  the  Commission  is  authorized  to  have  a  Secretary,  and  that 
official  acts  as  the  chief  executive  officer  of  the  body.  Certifications 
are  issued  in  his  name  and  correspondence,  other  than  that  relating 
to  prospective  complaints,  is  conducted  with  him." 

Sec.  18.  Special  examiners. — Under  the  act  of  June  29,  1906,  the 
Commission  is  authorized  to  "employ  special  agents  or  examiners, 
who  shall  have  authority  under  the  order  of  the  Commission  to  in- 
spect and  examine  any  and  all  accounts,  records,  and  memoranda" 
kept  by  the  carriers  subject  to  the  act. 

The  same  act  provides — 

And  to  carry  out  and  give  effect  to  the  provisions  of  the  *  *  *  [interstate 
commerce  acts]  *  *  *  the  Commission  is  hereby  authorized  to  employ  spe- 
cial agents  or  examiners  who  shall  have  power  to  administer  oaths,  examine  wit- 
nesses, and  receive  evidence. — (Sec.  20.) 

The  Commission  employs  a  number  of  special  agents  and  examiners 
for  the  purposes  just  mentioned. 

The  examiners"  appointed  in  conformity  with  law  to  administer 
oaths,  examine  witnesses,  and  receive  evidence,  are  8  in  number,  one 
of  whom  is  known  as  chief  examiner ;  7  of  them  act  as  assistants,  one 
to  each  Commissioner.  The  chief  examiner  has  charge  of  receiving 
petitions  and  authorizing  service  thereon  if  they  be  in  due  form;  he 
also  assigns  cases  for  hearing  and  attends  to  other  matters  in  connec- 
tion with  formal  complaints. 

Sec.  19.  Employees. — In  addition  to  those  above  mentioned,  the 
Commission  has  a  considerable  number  of  employees  such  as  confiden- 
tial clerks,  law  clerks,  and  rate  clerks — about  400,  in  all. 

iw  Mondays  are  ' '  conference  days ' '  of  the  Commission,  for  the  consideration 
of  decisions  and  orders.    The  members  can  not  usually  be  consulted  on  that  day. 

"The  present  incumbent,  Edward  A.  Moseley,  has  been  the  Secretary  of  the 
Commission  since  its  organization. 

'  The  two  classes  of  examiners  should  not  be  confused ;  one  is  to  inspect  ac- 
counts, the  other  to  act  as  deputy  commissioners  and  at  the  hearing  of  cases  to 
administer  oaths,  examine  witnesses  and  receive  evidence.  One  deals  with  the 
accounts  of  railways  inspecting  its  books,  the  other  acts  as  a  master  or  examiner 
in  chancery,  at  the  hearing  of  contested  cases. 


14  INTRODUCTION 

All  of  the  employees  are  appointed  by  the  Commission  under  the 
civil  service  rules. 

Sec.  20.  Docket  of  the  Commission. — The  Commission  keeps  a  docket 
of  cases  in  which  is  entered  the  names  of  the  parties  complainant  and 
defendant  and  the  dates  of  filing  the  complaint,  answer,  hearings, 
arguments,  briefs,  and  the  report  or  opinion  and  order.  Cases  are 
entered  serially.19  The  docket,  which  remains  at  the  office  in  Wash- 
ington, is  much  like  a  court  docket,  except  there  are  no  entries  for 
costs.  This  docket  also  contains  the  "General  investigations,"  under 
section  12  of  the  act;  these  cases  are  entitled  "In  re,"  or  "In  the 
matter  of. ' ' 

When  hearings  are  held  outside  of  Washington,  the  entire  record  of 
the  case  is  at  hand;  this  contains,  when  complete,  the  complaint,  an- 
swers, transcript  of  testimony,  exhibits,  briefs,  stenographic  notes  of 
oral  arguments,  if  any,  correspondence  in  connection  with  the  case, 
and  report  and  opinion. 

The  docket  of  informal  complaints  is  much  the  same,  each  complaint 
taking  a  serial  number. 

Sec.  21.  The  time  required  for  a  decision. — The  time  necessary  in 
which  to  have  a  decision  upon  a  formal  complaint  is,  as  in  other  sim- 
ilar matters,  uncertain ;  the  reasons  for  delay  which  can  be  interposed 
are  not  as  numerous,  however,  as  in  actions  before  the  courts.  Since 
the  passage  of  the  rate  law  of  1906,  the  number  of  complaints  has  been 
very  large,  and  the  Commission  has  been  occupied  not  only  with 
formal  and  informal  complaints,  but  in  prescribing  forms  of  schedules 
and  accounts  and  making  administrative  rulings.  One  can  hardly  ex- 
pect a  decision,  if  the  case  be  contested,  in  less  than  six  months. 
This  time  may  be  necessarily  lengthened  by  reason  of  numerous 
hearings,  the  delays  incident  to  any  proceeding,  and  the  importance 
of  the  questions  raised. 

The  time  usually  required  for  an  opinion  after  a  case  is  submitted 
is  from  four  to  six  weeks. 

19  Formal  complaints  having  numbers  lower  than  879  were  filed  prior  to  the  date 
when  the  rate  law  of  1906  went  into  effect,  Aug.  28,  1906;  complaints  numbered 
higher  than  879  have  been  filed  subsequent  to  that  date.  Informal  complaints 
are  numbered  serially,  the  first  number  under  the  rate  law  of  1906  being  3727. 


CHAPTER  II 
JURISDICTION  OF  THE  COMMISSION 


Sec.  22.  Jurisdiction  of  the  Commission. — The  term  "jurisdiction" 
when  used  in  connection  with  the  Interstate  Commerce  Commission 
in  this  work  is  used  advisedly ;  it  is  not  used  in  the  same  sense  as  the 
term  is  applied  to  strictly  judicial  bodies.  The  Commission,  exercis- 
ing as  it  does,  some  purely  judicial  functions,  certainly  quasi-judicial 
functions,  it  is  perhaps  not  inappropriate  to  refer  to  its  authority  as 
"jurisdiction"  if  one  take  and  interpret  broadly  the  definition  in 
U.  S.  v.  Arredondo  (6  Pet.,  709) : 

The  power  to  hear  and  determine  a  cause  is  jurisdiction;  it  is  coram  judice, 
whenever  a  case  is  presented  which  brings  this  power  into  action. 

It  is  doubtful  whether  or  not  all  the  proceedings  before  the  Com- 
mission can  be  technically  denominated  "cases"  and  whether  or  not 
the  subject-matter  of  all  the  proceedings  and  all  the  claims  of  the 
parties  constitute  a  "cause"  or  a  "controversy,"  and  whether  or 
not  in  all  cases  the  Commission  adjudicates  or  exercises  judicial  power 
over  the  parties  to  them.  Some  of  the  proceedings,  and  particularly, 
parts  of  them,  are  clearly  judicial  in  their  nature — i.  e.,  the  deter- 
mination of  the  reasonableness  of  an  existing  rate.1  Other  features 
of  the  same  proceeding  have  been  said  to  be  legislative  in  their  na- 
ture— i.  e.,  prescribing  the  rate  for  the  future.2  Other  proceedings 
lack  the  element  of  judicial  power  and  are  clearly  administrative  in 
their  nature,  such  as  the  right  to  prescribe  the  form  of  accounts. 

In  this  chapter  will  be  considered  those  powers  of  the  Commission 

»In  C.  M.  &  St.  P.  B.  Co.  v.  Minnesota  (134  U.  S.,  418),  the  court  said:  "The 
question  of  the  reasonableness  of  a  rate  of  charge  for  transportation  by  a  rail- 
road company,  involving,  as  it  does,  the  element  of  reasonableness  both  as  re- 
gards the  company  and  as  regards  the  public,  is  eminently  a  question  for  judicial 
investigation,  requiring  the  process  of  law  for  its  determination." 

'In  I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (167  TJ.  S.,  479)  the  court  held  that 
"the  power  to  prescribe  a  tariff  of  rates  for  carriage  by  a  common  carrier  is  a 
legislative  and  not  an  administrative  or  judicial  function."  And  in  the  same 
case,  at  p.  499,  the  court  said:  "It  is  one  thing  to  inquire  whether  the  rates 
which  have  been  charged  and  collected  are  reasonable — that  is,  a  judicial  act;  but 
an  entirely  different  thing  to  prescribe  rates  which  shall  be  charged  in  the  fu- 
ture— that  is,  a  legislative  act."  Prior  to  the  passage  of  the  act  of  June  29, 
1906,  it  had  been  held  that  the  Interstate  Commerce  Commission  had  no  power 
to  prescribe  rates  for  the  future  (C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.,  162  U.  S., 
184)  ;  that  the  Commission  had  no  power  to  fix  maximum  rates  (I.  C.  C.  v.  N. 
E.  E.  Co.,  74  Fed.,  70)  ;  that  the  Commission  was  not  clothed  with  the  power  to 
fix  rates  (I.  C.  C.  v.  L.  V.  E.  Co.,  74  Fed.,  784). 


16  JURISDICTION  OP  THE  COMMISSION 

which  may  be  exercised  by  courts  and  quasi- judicial  tribunals;  in 
the  succeeding  chapter  will  be  considered  those  powers  of  the  Commis- 
sion which  are  not  ordinarily  exercised  by  that  class  of  bodies. 

Sec.  23.  Legal  status  of  the  Commission. — The  Interstate  Commerce 
Commission  occupies,  as  has  been  seen,  a  peculiar  place  in  the  Fed- 
eral Government,  being  disconnected  from  the  Executive  Depart- 
ments, not  attached  to  the  judiciary  and  reporting  to,  but  not  a  part, 
of  the  legislature.  The  courts  are  not  harmonious  in  stating  its 
legal  status.  In  T.  &  P.  R.  Co.  v.  I.  C.  C.  (162  U.  S.,  197),  after 
considering  the  language  of  the  eleventh  and  sixteenth  sections  of  the 
act,  the  court  said: 

We  think  that  the  language  of  the  statute,  in  creating  the  Commission  and  in 
providing  that  it  shall  be  lawful  for  the  Commission  to  apply  by  petition  to  the 
Circuit  Court,  sitting  in  equity,  sufficiently  implies  the  intention  of  the  Congress 
to  create  a  body  corporate  with  legal  capacity  to  be  a  party  plaintiff  or  defen- 
dant in  the  Federal  courts. 

In  another  case*  the  Commission  is  referred  to  as  "an  administra- 
tive board." 

That  the  power  to  "execute  and  enforce"  is  partly  judicial,  partly 
executive  and  administrative,  but  not  legislative  has  been  stated  by 
the  Supreme  Court.  * 

It  [the  Commission]  is  neither  a  Federal  court  under  the  Constitution,  nor  does 
it  exercise  judicial  powers,  nor  do  its  conclusions  possess  the  efficacy  of  judicial 
proceedings.8 

It  has  been  said  to  exercise  quasi- judicial  powers." 

Its  functions  have  been  said  to  be  those  of  referees  or  special  com- 
missioners.7 

Since  the  passage  of  the  rate  law  in  1906,  the  Commission  has 
referred  to  itself  as  an  administrative  body,8  and  has  also  said  that 
"there  is  an  analogy  between  the  jurisdiction  of  the  Commission  and 
that  of  a  court  of  equity."" 

Sec.  24.  Nature  of  jurisdiction  of  Commission. — The  jurisdiction  of 

•  C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  184).  See  also  I.  C.  C.  v.  C.  N. 
O.  &  T.  P.  R.  Co.  (167  U.  S.,  479). 

•I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (167  U.  S.,  479). 

*K.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (37  Fed.,  567). 

•I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (76  Fed.,  183),  I.  C.  C.  v.  C.  N.  O.  &  T. 
P.  E.  Co.  (64  Fed.,  981),  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197),  I.  C.  C.  v. 
C.  N.  O.  &  T.  P.  E.  Co.  (167  U.  S.,  479),  I.  C.  C.  v.  L.  &  N.  E.  Co.  (73  Fed., 
409). 

7  K.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (37  Fed.,  567). 

•M.  and  K.  Shippers  Assn.  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.,  483).  Under  the 
former  act  the  Commission  in  Toledo  Produce  Ex.  v.  L.  S.  &  M.  S.  E.  Co.  (51. 
C.  C.,  166),  referred  to  itself  as  a  special  tribunal  whose  duties,  though  largely 
administrative  are  sometimes  semijudicial,  but  it  is  not  a  court  empow- 
ered to  render  judgment  and  enter  decrees.  In  a  recent  work  it  is  said  of  the 
Commission :"  It  is  no  longer  an  inquisitorial  and  advisory  body.  It  is  an  in- 
vestigating and  prosecuting  body,  clothed  with  authority  to  inforce  these  orders." 
— Snyder  Annotated  Interstate  Commerce  Act,  supplement,  p.  87. 

•E.  Com.  v.  H.  V.  E.  Co.  (12  I.  C.  C.,  398). 


JURISDICTION  OF  THE  COMMISSION  17 

the  Commission  is  purely  statutory  and  its  authority  to  act  must  be 
found  either  expressly  or  by  necessary  implication  in  the  language 
of  the  statute ;  the  courts  have  not  tolerated  any  implied  powers  even 
to  accomplish  what  it  was  argued  were  necessary  to  reach  the  evils 
complained  of  and  an  essential  part  of  the  process  of  reasoning.10 

While  the  act  contains  certain  provisions  by  which  obligations  are 
imposed  on  common  carriers,  and  the  Commission  is  charged  with 
executing  and  enforcing  the  act,  yet  over  such  matters  the  Commis- 
sion has  no  jurisdiction  to  order,  but  only  to  recommend.11 

The  jurisdiction  of  the  Commission  must  be  determined  by  the  lan- 
guage of  section  1  of  the  act ;  u  the  regulations  provided  by  the  stat- 
ute are  not  coextensive  with  the  power  of  the  Congress  under  the 
Constitution." 

It  is  manifest  that  the  Commission  does  not  have  jurisdiction  over 
all  commerce  among  the  States,  nor  over  commerce  with  the  Indian 
tribes,  as  such,  nor  all  commerce  with  foreign  nations. 

The  Commission  is  limited  to  inquiring  into  violations  of  the  act : 

INSTANCE. — In  N.  Y.  P.  Ex.  v.  B.  &  O.  E.  Co.  (7  I.  C.  C.,  612),  the  Commission 
held  that  its  jurisdiction  is  confined  to  inquiring,  whether  the  situation  respecting 
rates,  through  routes,  and  differentials  which  the  carriers  have  created,  is  in  vio- 
lation of  the  act  to  regulate  commerce. 

Sec  25.  Effect  of  lack  of  jurisdiction. — While  in  a  particular  in- 
stance the  Commission  may  not  have  jurisdiction,  it  may,  neverthe- 
less, if  the  matter  involve  interstate  commerce  and  indicate  viola- 
tions of  the  act,  make  an  investigation ;  for,  by  section  13,  it  is  pro- 
vided— 

if  *     there  shall  appear  to  be  any  reasonable  ground  for  investigating 

said  complaint,  it  shall  be  the  duty  of  the  Commission  to  investigate  the  mat- 
ters complained  of  in  such  manner  and  by  such  means  as  it  shall  deem  proper. 

Want  of  jurisdiction  of  the  Commission  in  any  particular  is  neces- 
sarily fatal." 

10  C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.  (167  U.  S.,  479)  the  court  said:  "The 
question  debated  is  whether  it  [the  act]  vested  in  the  Commission  the  power  and 
duty  to  fix  rates;  and  the  fact  that  this  is  a  debatable  question,  and  has  been 
most  strenuously  and  earnestly  debated,  is  very  persuasive  that  it  did  not.  The 
grant  of  such  a  power  is  never  to  be  implied.  The  power  itself  is  so  vast  and 
comprehensive,  so  largely  affecting  the  rights  of  carrier  and  shipper,  as  well 
as  indirectly  all  commercial  transactions,  the  language  by  which  the  power  is 
given  had  been  so  often  used  and  was  so  familiar  to  the  legislative  mind  and  is 
capable  of  such  definite  and  exact  statement,  that  no  just  rule  of  construction 
would  tolerate  a  grant  of  such  power  by  mere  implication. ' ' 

"Be  Bills  of  Lading  (14  I.  C.  C.,  346). 

"In  Ee  Express  Companies  (1  I.  C.  C.,  349)  the  Commission  said:  "The 
jurisdiction  of  the  Commission  is  strictly  statutory,  and  can  not  be  extended  by 
implication  over  other  subjects  than  those  which  the  act  defines.  In  any  case 
of  doubtful  jurisdiction  it  is  far  better  that  the  legislative  body  should  resolve 
the  doubt."  See  also  Cosmopolitan  Shipping  Co.  v.  Hamburg-American  P.  Co. 
(13  I.  C.  C.,  266). 

"Mattingly  v.  P.  Co.  (3  I.  C.  C.,  592). 

"  Chandler  C.  O.  Co.  v.  Ft.  S.  &  W.  E.  Co.   (13  I.  C.  C.,  473),  Manning  v.  C. 


18  JURISDICTION  OF  THE  COMMISSION 

Sec.  26.  Jurisdiction  as  affected  by  the  amount  in  controversy.— As 
the  jurisdiction  of  the  Commission  is  not  ousted  by  the  absence  of 
damage  to  a  complainant,  so  the  amount  in  controversy  does  not  affect 
the  jurisdiction  of  the  Commission.  There  may  or  may  not  be  dam- 
ages claimed;  the  amount  of  traffic  involved  may  be  very  small,  the 
rate  may  be  a  "paper"  rate;  yet  the  jurisdiction  of  the  Commission 
attaches,  if  only  the  essentials  of  a  case — i.  e.,  an  alleged  violation  of 
the  law." 

Sec.  27.  Necessity  that  jurisdiction  appear. — As  the  jurisdiction  of 
the  Commission  is  statutory  w  there  is  no  presumption  that  the  Com- 
mission has  jurisdiction;  but  such  must  affirmatively  appear  from 
the  allegations  in  the  petition  and  from  the  record.  The  jurisdiction 
of  the  Commission  is  a  limited  one,  dependent  solely  on  the  statute 
giving  the  powers.  What  has  been  said  "  concerning  the  circuit  and 
district  courts  of  the  United  States  is  applicable  to  the  Commission : 

Their  powers  can  only  be  exercised  when  the  facts  which  are  alleged  to  set  them 
in  motion  are  such  as  Congress  has  declared  they  may  take  cognizance  of 
The  plaintiff  must  allege  the  jurisdictional  facts;  when  they  are  shown  the  pre- 
sumption is  in  favor  of  the  regularity  of  the  proceedings. 

The  want  of  jurisdiction  in  a  particular  case  may  be  raised  by 
answer,  as  in  New  York  Hay  Exchange  v.  P.  E.  Co.  (14  I.  C.  C., 
178),  where  the  answer  of  one  of  the  defendants  reserved  the  point; 
or  by  demurrer,  as  in  Cosmopolitan  Shipping  Co.  v.  Hamburg- Amer- 
ican Packet  Co.  (13  I.  C.  C.,  266) ;  or  the  Commission  will  take  cog- 
nizance of  the  fact  of  its  own  motion,  as  in  Chandler  C.  0.  Co.  v. 
Ft.  S.  &  W.  E.  Co.  (13  I.  C.  C.,  473). 

Sec.  28.  Jurisdiction  by  consent. — Strictly  speaking,  the  Commis- 
sion has  no  jurisdiction,  even  in  the  sense  in  which  that  term  is  used 
in  this  work,  by  the  consent  of  the  parties.  Not  infrequently,  how- 
ever, the  Commission  undertakes  an  investigation  at  the  request  of 
commercial  organizations,  renders  an  opinion,  but  can,  of  course,  make 
no  order  therein.  The  case  involving  the  Differential  Bates  to  and 
from  Atlantic  ports  (11  I.  C.  C.,  13)  began  by  a  general  order  of 

&  A.  B,  Co.  (13  I.  C.  C.,  125),  Capehart  v.  L.  &  N.  E.  Co.  (4  I.  C.  C.,  265).  The 
Commission  can  make  no  lawful  order  in  any  case  of  which  it  has  no  jurisdiction 
under  the  act  (Hussey  v.  C.  B.  I.  &  P.  E.  Co.  (13  I.  C.  C.,  366),  citing  McNulty 
v.  Batty  (10  How.,  72),  Ex  parte  McCardle  (7  Wall.,  514),  Norris  v.  Crocker 
(13  How.,  429),  Koenigsberger  v.  Eichmond  Silver  Mine  Co.  (158  IT.  S.,  48), 
U.  S.  v.  Boisdore's  Heirs  (8  How.,  121),  Yeaton  v.  U.  S.  (5  Cranch,  281),  South 
Carolina  v.  Gaillard  (101  U.  S.,  437),  Eailroad  Co.  v.  Grant  (98  U.  S.,  398),  Free- 
born  v.  Smith  (2  Wall.,  173),  Insurance  Co.  v.  Eitchie  (5  Wall.,  541),  Moore  v. 
U.  S.  (85  Fed.,  465). 

u  It  is  not  too  much  to  say  that  at  times  proceedings  have  been  brought  be- 
fore the  Commission  and  entertained  in  which  no  principle  of  law  has  been  in- 
volved and  petty  reparation  asked. 

"Brown  on  Jurisdiction  (sec.  22):  For  the  necessity  that  persons  exercising 
statutory  powers  must  make  them  appear  and  that  they  must  be  true  in  fact. 
(Ibid.,  sec.  23.) 

"Brown  on  Jurisdiction  (see.  22). 


JURISDICTION  OF  THE  COMMISSION  19 

the  Commission  which  was  predicated  on  petitions  from  the  commer- 
cial organizations  of  Boston,  New  York,  Philadelphia,  and  Baltimore. 

Such  proceedings  are  more  in  the  nature  of  an  arbitration  than 
otherwise,  but  lack  the  binding  effect  of  an  award,  for  the  recom- 
mendations of  the  Commission  may  or  may  not  be  followed. 

Sec.  29.  Territorial  jurisdiction  of  the  Commission. — As  the  acts  to 
regulate  commerce  are  not  as  broad  as  the  constitutional  authority 
to  the  Congress  respecting  commerce,  so  the  territorial  jurisdiction 
of  the  Commission  is  not  coextensive  with  the  geographical  power  of 
the  Congress  in  that  behalf.  The  Constitution  gives  to  the  Congress 
power  to  regulate  commerce  "with  foreign  Nations,"  and  "among 
the  several  States"  and  "with  the  Indian  Tribes."  Thus,  the  Con- 
gress has  power  to  regulate  all  commerce,  except  intrastate.18  It  has, 
by  the  acts  to  regulate  commerce  given  to  the  Commission  jurisdiction 
over  commerce  among  the  several  States  and  Territories,  technically 
such,  and  with  foreign  nations  only  to  a  limited  extent — all  only  when 
conducted  in  a  specified  manner.  No  jurisdiction  is  given  over  com- 
merce with  the  dependencies,  not  technically  territories  of  the  United 
States. 

The  geographical  limit  of  the  jurisdiction  of  the  Commission  is  the 
physical  territory  of  the  United  States  proper  (not  including  terri- 
tory over  which  the  Congress  may  exercise  exclusive  jurisdiction  and 
not  by  law  made  Territories)  and  over  commerce  originating  and 
terminating  in  the  United  States  passing  through  adjacent  foreign 
countries  (Canada  and  Mexico),19  and  originating  in  the  United 
States  destined  to  an  adjacent  foreign  country  (sec.  1).  Its  jurisdic- 
tion over  import  and  export  commerce,  other  than  with  the  adjacent 
countries  of  Canada  and  Mexico,  only  applies  while  the  articles  of 
commerce  are  within  the  boundaries  of  this  country,  if  beyond  the 
3  mile  limit,  it  is  free  from  the  control  of  the  Commission.20 

Trans- Atlantic  and  Trans-Pacific  commerce  are  not  subject  to  the 
act;  nor  commerce  with  Cuba,  even  if  there  be  a  common  control, 
management,21  or  arrangement  between  rail  carriers  in  this  country 

"In  Bobbins  v.  Taxing  District  (120  IT.  S.,  489)  the  Supreme  Court  said:  "In 
a  word,  it  may  be  said  that  in  the  matter  of  interstate  commerce  the  United 
States  are  but  one  country,  and  are  and  must  be  subject  to  one  system  of  regula- 
tions, and  not  to  a  multitude  of  systems. ' ' 

19  In  Cist  v.  M.  C.  E.  Co.  (10  I.  C.  C.,  217)  it  was  held  that  while  the  act  to 
regulate  commerce  may  be  applied  to  the  reasonableness  of  a  rate  from  a  point 
in  Canada  to  a  point  in  the  United  States,  yet  no  United  States  statute  could 
apply  to  a  discrimination  between  places  in  a  foreign  country. 

20  Cosmopolitan  Shipping  Co.  v.  Hamburg-American  Packet  Co.    (13   I.  C.  C., 
266). 

21  In  re  Publication  and  Filing  of  Tariffs   (10  I.  C.  C.,  55)   it  was  held  that 
public  policy  requires  that  the  inland  transportation  should  be  subject  to  the 
act  and  that  the  publishing  and  maintaining  of  tariffs  upon  such  traffic  would, 
in  general,  work  no  hardship  upon  the  carrier.     It  was  also  held  that  the  pro- 
visions of  the  law  on  this  behalf  were  mandatory.     (Compare  rule  86,  Appendix.) 


20  JURISDICTION  OF  THE  COMMISSION 

and  a  steamship  line  to  Cuba,22  it  being  not  an  adjacent  foreign 
country. 

Within  the  States  the  Commission  has  no  jurisdiction  as  the  act  does 
not  (and  of  course  a  Federal  statute  can  not)  confer  authority  re- 
specting intrastate  commerce ; "  thus,  the  Commission  will  not  enforce 
constitutional  provisions  of  a  State.24 

Sec.  30.  Exclusive  jurisdiction  of  the  Commission. — Since  the 
decision  of  the  Supreme  Court  in  Abilene  Cotton  Oil  Co.  v.  T.  &  P. 
R.  Co.  (204  U.  S.,  426)  it  would  appear  that  the  Interstate  Commerce 
Commission  is  the  sole  judge,  at  least  in  the  first  instance,  of  the  rea- 
sonableness of  an  existing  rate.  In  that  case  the  court  said : 

A  shipper  seeking  reparation  predicated  upon  the  unreasonableness  of  the  es- 
tablished rate  must,  under  the  act  to  regulate  commerce,  primarily  invoke  redress 
through  the  Interstate  Commerce  Commission,  which  body  alone  is  vested  with 
power  originally  to  entertain  proceedings  for  the  alteration  of  an  established 
schedule,  because  the  rates  fixed  therein  are  unreasonable. 

It  is  possible  that  the  Commission  has  exclusive  jurisdiction  of 
cases  seeking  reparation,  where  the  amount  in  controversy  is  less  than 
$2,000.  The  jurisdiction  of  the  Circuit  Court,  where  other  than  the 
United  States  are  plaintiffs,  is  limited  by  the  act  of  August  13,  1888 
(25  Stat.  L.,  433),  to  cases  where  the  amount  in  controversy  is  the 
sum  above  mentioned.  Section  9  of  the  interstate  commerce  act  gives 
to  any  person  or  persons  claiming  to  be  damaged  the  election  to  make 
complaint  to  the  Commission  or  bring  suit  in  any  District  or  Circuit 
Court  of  the  United  States  of  competent  jurisdiction.  It  does  not 
provide,  as  does  the  Sherman  anti-trust  law  (act  of  July  2,  1890,  26 
Stat.  L.,  209),  that  suitors  may  sue  in  a  circuit  court  "without  respect 
to  the  amount  in  controversy."  The  legislative  intention  concerning 
the  jurisdiction  of  the  Federal  courts  in  cases  brought  by  one  claim- 
ing to  be  injured,  either  under  section  9  of  the  act  or  under  section 
16  (after  an  order  by  the  Commission  awarding  reparation),  has  not 
been  judicially  determined.  Cases  involving  the  statutory  sum  of 
$2,000,  under  both  sections  9  and  16  have  been  brought,  but  it  is 
doubted  if  any  case  has  been  filed  in  the  Federal  courts  where  the 
amount  in  controversy  was  less  than  the  statutory  amount.  Until  a 
decision  in  this  matter  there  must  be  a  question  concerning  whether 
or  not  the  jurisdiction  of  the  Commission,  where  the  reparation  claim- 

"Lykes  Steamship  Line  v.  Commercial  Union  (13  I.  C.  C.,  310). 

28  Within  the  purview  of  the  Constitution  all  commerce  is,  by  being  specifically 
mentioned,  (a)  foreign,  (b)  with  the  Indian  tribes,  (c)  among  the  States;  by 
exclusion,  (d)  intrastate.  The  acts  to  regulate  commerce  and  the  judicial  de- 
cisions have  subdivided  foreign  commerce  into  (1)  foreign  commerce  while 
within  the  geographic  limits  of  the  United  States;  (2)  foreign  commerce  orig- 
inating in  the  United  States  and  terminating  in  an  adjacent  foreign  country 
(Canada  and  Mexico),  or  originating  in  an  adjacent  foreign  country  and  terminat- 
ing in  the  United  States;  (3)  foreign  commerce,  which  would  otherwise  be  intra  or 
inter  state,  which  in  its  transit  passes  through  an  adjacent  foreign  country. 

"B.  Com.  v.  L.  &  N.  K,  Co.  (10  I.  C.  C.,  173). 


JURISDICTION  OP  THE  COMMISSION  21 

ed  is  less  than  $2,000  is  exclusive,  or  concurrent  with  the  Federal 
courts.  Certain  it  is,  the  tendency  of  the  cases  is  to  limit  the  jurisdic- 
tion of  Federal  courts  to  those  cases  where  the  statutory  sum  is  in- 
volved. 

Statutory  amount  necessary  to  give  circuit  courts  jurisdiction : 
INSTANCE.— In  Holt  v.  Indiana  Mfg.  Co.  (176  TL  S.,  69),  affirming  U.  S.  v. 
Say  ward  (160  U.  S.,  493),  and  Fishback  v.  Western  Union  Tel.  Co.  (161  U.  S., 
96),  the  court  said:  ''That  the  Circuit  Court  could  not,  under  the  statute  [Aug. 
13,  1888]  take  original  cognizance  of  cases  arising  under  the  Constitution  or 
laws  of  the  United  States,  unless  the  sum  or  value  of  the  matter  in  dispute,  ex- 
clusive of  costs  and  interest,  exceeded  $2,000  *  *  *  and  the  conclusion 
reached  is  not  affected  by  the  fact  that  the  operation  of  the  act  of  March  3, 
1891,  was  to  do  away  with  any  pecuniary  limitation  on  appeals  directly  from 
the  circuit  courts  to  this  court  (The  Paquete  Habana,  175  U.  S.,  677)." 

But  the  Federal  courts  will  entertain  a  proceeding  to  restrain  by  in- 
junction a  rate  to  be  made  effective  in  the  future.25 

If  the  jurisdiction  of  the  Commission  to  determine  the  reasonable- 
ness of  a  rate  effective  either  presently  or  in  future  is  exclusive,  it  is 
believed  that  the  better  practice  would  be  to  concurrently  file  a  com- 
plaint with  the  Commission  alleging  that  the  existing  rates  (or  the 
rates  effective  in  the  future,  as  the  ease  may  be)  are  unreasonable  and 
to  file  a  bill  in  the  Federal  courts  asking  for  an  injunction  against  the 
present  or  proposed  rates  (with  allegations  of  the  action  brought  be- 
fore the  Commission),  until  the  decision  of  the  Commission  be  ren- 
dered. The  Commission  has  recently  held  informally  that  it  had 
jurisdiction  to  entertain  a  petition  alleging  unreasonableness  of  rates 
effective  in  the  future,  if  the  petition  be  filed  subsequent  to  the  filing 
of  the  schedule  but  prior  to  the  date  the  rate  is  effective. 

The  Commission  has,  as  well,  exclusive  jurisdiction  in  the  first  in- 
stance of  applications  by  carriers  for  relief  under  section  4  (sec.  34), 
and  probably  for  relief  under  the  provisions  of  section  15  (sec.  35) — 
i.  e.,  correction  of  regulations  and  practices  of  the  carriers;  making 
of  through  routes  and  joint  rates,  and  determining  the  just  and  rea- 
sonable charge  to  be  paid  by  the  carrier  for  a  service  performed  by 
the  owner  of  the  property  to  be  transported. 

Sec.  31.  Concurrent  jurisdiction. — The  Commission  has  concurrent 
jurisdiction  with  the  Federal  courts,  at  the  suit  of  one  aggrieved,  to 
correct  violations  of  and  compel  obedience  to  the  provisions  of  the 
interstate  commerce  act ; 2"  but  if  the  wrong  be  one  which  can,  con- 
sistently with  the  context  of  the  act,  be  redressed  by  the  Commission, 
the  courts  have  no  jurisdiction.27 

25  Several  cases  having  for  their  object  an  injunction  against  rates   effective 
in  the  future  were  filed  in  the  United  States  circuit  courts  in  the  summer  of 
1908. 

26  In  re  Lennon   (166  U.  S.,  548).     For  the  general  chancery  jurisdiction  for 
Federal  courts  as  applied  to  interstate  commerce  see  sec.  157,  post. 

27  T.  &  P.  E.  Co.  v.  Abilene  C.  O.  Co.  (204  U.  S.,  426). 


22  JURISDICTION  OF  THE  COMMISSION 

The  power  of  the  Federal  courts  has  been  invoked  to  compel  obe- 
dience to  the  provisions  of  section  3  of  the  act ; *  to  enjoin  rates  al- 
leged to  be  unreasonable,  when  an  action  to  determine  the  fact  is 
pending  before  the  Commission ; "  and  to  prevent  unlawful  discrim- 
ination." 

The  Commission  has  concurrent  jurisdiction,  under  the  provisions 
of  section  9  of  an  action  brought  by  one  claiming  to  be  damaged  by 
any  common  carrier  subject  to  the  provisions  of  the  act.*1 

The  Commission  has  no  jurisdiction  concurrent  with  the  State 
courts,  for,  by  the  act,  such  jurisdiction  as  is  conferred  is  to  the 
Federal  courts  only;8*  in  some  instances,  however,  there  may  be  an 
apparent  concurrent  jurisdiction — as,  for  example,  a  State  court  or 
commission  may  have  jurisdiction  to  compel  a  switch  connection — on 
the  theory  that  intrastate  traffic  is  transported  over  it,83  and,  if  the 
traffic  is  also  interstate,  the  Commission,  under  section  1,  would  have 
authority  to  compel  its  construction.8* 

Sec.  32.  Jurisdiction  to  determine  entire  controversy. — Not  infre- 
quently cases  are  determined  by  the  Commission,  but  by  reason  of 
lack  of  evidence,  or  other  defect,  not  jurisdictional,  the  Commission 
can  not  award  reparation  or  make  a  final  order.  In  such  instances, 
the  case  is  often  held  open  for  proof  of  reparation,  as  in  Farmers' 
Warehouse  Co.  v.  L.  &  N.  R.  Co.  (12  I.  C.  C.,  457),  or  to  complete 
proof  on  some  specific  point,  as  in  Richmond  Eltr.  Co.  v.  P.  M.  R.  Co. 
(101.  C.  C.,  629). 

If  the  defect  be  jurisdictional,  the  case  is  dismissed  without  preju- 
dice, as  in  Johnston-Larimer  D.  G.  Co.  v.  W.  R.  Co.  (12  I.  C.  C.,  51). 

General  investigations  may  be  predicated  upon  facts  alleged  in  a 
formal  petition,  which  has  for  some  reason  been  dismissed : 

INSTANCE. — In  White  v.  M.  C.  E.  Co.  (3  I.  C.  C.,  281),  -where  argument  was 
had  upon  defendant's  motion  to  dismiss  the  complaint  for  insufficiency  of  alle- 
gations showing  a  violation  of  the  act,  but  the  complainant  had  filed  some  deposi- 
tions taken  before  the  hearing  of  the  motion,  the  Commission  examined  the 
depositions  with  a  view  of  ascertaining  whether  or  not  their  relation  to  the  alle- 
gations of  the  complaint  was  such  as  to  show  an  unlawful  practice  by  the  de- 
fendant, and  while  the  complaint  was  dismissed  without  prejudice  the  Commis- 
sion held  it  its  duty  to  proceed  against  the  defendant  upon  its  own  motion. 

"Central  Stock  Yards  Co.  v.  L.  &  N.  E.  Co.  (47  Fed.,  771),  C.  B.  &  Q.  E.  Co. 
v.  B.  C.  E.  &  N.  E.  Co.  (34  Ted.,  481). 
»Tift  v.  S.  K.  Co.  (123  Fed.,  794). 

80  Interstate  Stock  Yards  Co.  v.  I.  U.  E.  Co.  (99  Fed.,  472). 

81  Whether  the  jurisdiction  is  concurrent  in  all  such  cases,  see  sec.  30,  ante. 
"Fitzgerald  v.  Fitzgerald  etc.,  Constr.  Co.   (41  Nebr.,  467),  Carlisle  v.  M.  P. 

E.  Co.  (168  Mo.,  652),  Edmunds  v.  I.  C.  E.  Co.  (80  Fed.,  78),  Van  Patten  v. 
C.  M.  &  St.  P.  E.  Co.  (74  Fed.,  981),  Copp  v.  L.  &  N.  E.  Co.  (43  La.  Ann.,  511), 
Swift  v.  P.  &  E.  Co.  (58  Fed.,  858). 

"  W.  M.  &  P.  E.  Co.  v.  Jacobson  (179  II.  S.,  287). 

14  It  may  be  that  this  power  falls  exclusively  within  the  police  powers  of  the 
States  (Woodruff  v.  N.  Y.  S.  N.  E.  E.  Co.,  59  Conn.,  63). 


JURISDICTION  OF  THE  COMMISSION  23 

In  re  Carriage  of  Persons  Free,  etc.  (5  I.  C.  C.,  69)  it  was  held  that  where 
an  investigation  by  the  Commission  of  its  own  motion  inquiring  into  the  busi- 
ness management  of  a  carrier  subject  to  the  act  had  been  fully  concluded  as  to 
some  matter  and  not  concluded  as  to  others,  an  order  might  be  made  pendente  lite 
as  to  the  former  and  the  case  retained  for  further  investigation,  consideration 
and  order  as  to  the  latter. 

In  re  Alleged  Unlawful  Transportation  Charges  (6  I.  C.  C.,  624)  where  a  com- 
plaint forwarded  by  a  State  railroad  commission  had  caused  the  Commission  to 
institute  an  inquiry  on  its  own  motion  and  the  defendant  had  reduced  certain 
rates  of  freight  to  certain  points,  they  being  the  principal  points  concerning 
which  testimony  was  given,  but  it  appearing  that  rates  to  certain  other  points 
and  traffic  should  be  revised,  it  was  held  that  while  the  defendant  showed  a  dis- 
position to  remove  the  cause  of  complaint,  no  order  would  be  made  but  that  all 
the  matters  would  be  held  open  for  such  further  action  or  investigation  as  upon 
the  application  or  petition  of  any  interested  party  might  appear  necessary. 

In  Smith  v.  N.  P.  E.  Co.  (1  I.  C.  C.,  208)  it  was  held  where  one  had  filed  a 
complaint  before  the  Commission  and  had  set  up  a  grievance  which  he  had  failed 
to  prove  the  Commission  might  nevertheless,  if  a  violation  of  the  law  by  the  de- 
fendant appear,  retain  the  case  and  take  the  necessary  steps  to  bring  such  vio- 
lations of  the  law  to  an  end. 

Cases  may  be  retained  for  proof  of  reparation : 

INSTANCE.— In  MacLoon  v.  C.  &  N.  W.  Co.  (5  I.  C.  C.,  84)  it  was  held  that  by 
reason  of  the  action  of  the  defendant  the  complainant  was  entitled  to  reparation, 
but  as  the  proof  as  to  the  extent  of  the  complainant's  damages  were  insuf- 
ficient the  case  be  held  open  without  an  order,  and  that  upon  notice  of  adjust- 
ment by  the  parties  of  the  question  of  reparation  the  petition  would  be  dismissed. 

In  Cattle  Kaisers'  Assn.  v.  Ft.  W.  &  D.  C.  E.  Co.  (7  I.  C.  C.,  513)  a  decision 
was  rendered  upon  one  branch  of  the  case  but  was  continued  upon  the  question 
of  reparation,  all  questions  respecting  which  were  left  open,  until  proof  of  dam- 
ages had  been  made  by  the  members  of  the  complaining  association. 

In  E.  Com.  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  13)  where  an  advance  in  rate  was 
partly  condemned  it  was  ordered  that  the  defendants  be  notified  and  required  to 
make  reparation  for  injuries  occasioned  by  the  amount  of  the  unreasonable  in- 
crease to  the  several  persons  entitled,  but  as  such  persons  were  not  parties  to  the 
proceeding,  and  the  amounts  wrongfully  exacted  could  not  be  determined  from 
the  evidence  in  the  case  the  proceeding  was  continued  for  such  further  action  or 
inquiry  respecting  the  reparation  as  might  become  necessary. 

Cases  may  be  retained  for  further  evidence  upon  particular  points, 
if  the  circumstances  warrant : 

INSTANCE.— In  Hilton  L.  Co.  v.  W.  &  W.  E.  Co.  (9  I.  C.  C.,  17)  the  case  was 
retained  for  further  investigation  in  regard  to  certain  apparent  discriminations 
resulting  from  shipment  via  two  different  routes. 

In  Spartanburg  B.  of  T.  v.  E.  &  D.  E.  Co.  (2  I.  C.  C.,  304)  the  pleadings  were 
submitted  without  evidence  and  the  Commission  ordered  the  case  adjourned  to  a 
future  date  for  the  purpose  of  taking  evidence  upon  the  question  of  the  com- 
mercial effect  of  a  schedule  of  rates  which  was  in  controversy. 

In  Bice  v.  C.  W.  &  B.  E.  Co.  (5  I.  C.  C.,  193)  the  case  against  one  of  the 
defendants  was  retained  for  further  evidence  and  argument  on  the  question 
whether  water  competition  at  various  points  justified  a  departure  from  the  re- 
quirements of  the  first  paragraph  of  the  fourth  section  of  the  act,  and  for  further 
investigation  of  the  defendant's  charges  to  non-competitive  points.  As  to  other 


24  JURISDICTION  OP  THE  COMMISSION 

defendants  the  case  was  held  open  for  additional  evidence  and  argument  after 
amendment  of  pleadings  to  be  allowed  upon  the  application  of  any  party  with 
notice. 

Orders  may  be  suspended  temporarily  to  permit  carriers  to  adjust 
rates  to  conform  to  the  opinion : 

INSTANCE. — In  Eea  v.  M.  &  O.  E.  Co.  (7  I.  C.  C,,  43)  an  order  issued  in  regard 
to  a  group  rate,  but  the  case  was  held  open  to  permit  a  readjustment  of  rates 
and  leave  granted  to  the  complainant  to  apply  for  an  order  respecting  the  read- 
justment as  might  be  necessary,  and  also  with  leave  to  either  party  to  introduce 
evidence. 

In  Board  of  Trade  of  H.  v.  N.  C.  &  St.  L.  K.  Co.  (8  I.  C.  C.,  503),  the  Com- 
mission made  a  report  with  its  conclusions,  and  the  defendants  were  given  until 
a  future  date  to  readjust  their  rates  in  accordance  therewith;  and  if  at  the 
date  specified  the  rates  had  not  been  readjusted,  that  an  order  would  issue  in  the 
premises. 

In  Danville  v.  S.  E.  Co.  (8  I.  C.  C.,  409)  the  case  was  held  open  and  order 
suspended  to  await  the  readjustment  of  rates  by  the  defendant  carrier  and  its 
connections. 

Sec.  33.  Authority  to  make  investigations  on  initiative  of  Commis- 
sion.— The  authority  of  the  Commission  to  make  general  investiga- 
tions and  orders  affecting  a  considerable  number  of  carriers  or  a  wide 
expanse  of  territory,  upon  its  own  motion,  and  without  the  formality 
of  a  complaint  is  conferred  by  section  13.  The  Commission  ' '  may  in- 
stitute an  inquiry  on  its  own  motion  in  the  same  manner  and  to  the 
same  effect  as  though  complaint  had  been  made." 

Under  this  provision  the  Commission  has  instituted  numerous  in- 
vestigations, general  in  their  nature ;  in  some  orders  have  been  made, 
in  others  no  order  could  be  made.35 

The  investigations  have  covered  the  practices"  of  carriers  as  well 
as  proposed  advances  in  rates,37  filing  of  tariffs  K  and  relation  of  rates 
in  particular  kinds  of  commerce.38 

The  right  of  the  Commission  to  make  and  the  nature  of  general  in- 
vestigations will  be  found  discussed  in  Re  Proposed  Advances  in 
Freight  Bates  (9  I.  C.  C.,  382),  I.  C.  C.  v.  D.  G.  H.  &  M.  E.  Co.  (57 
Fed.,  1005),  U.  S.  v.  M.  P.  E.  Co.  (65  Fed.,  909),  Harriman  v.  I.  C. 
C.  (No.  315,  Supreme  Court,  decided  December  14,  1908),  holding 
that  evidence  in  such  cases  can  only  be  exacted  respecting  matters 
which  may  be  made  the  subject  of  a  complaint. 

35  No  order  was  made  in  re  Through  Routes  and  Through  Bates  (12  I.  C.  C., 
163),  but  an  order  was  made  in  re  Allowances  to  Elevators  (12  I.  C.  C.,  86).  In 
re  Divisions  of  Joint  Bates  (10  I.  C.  C.,  385)  it  was  said:  "This  being  a 
general  investigation  in  which  no  specific  charges  have  been  formulated  against 
particular  defendants  no  order  can  be  made,  nor  would  any  order  apparently  add 
to  the  prohibition  of  the  statute  itself." 

86  Be  Through  Boutes  and  Bates  (12  I.  C.  C.,  163)  re  Divisions  of  Joint  Bates 
(10  I.  C.  C.,  385),  re  Alleged  Unlawful  Rates  and  Practices  (8  I.  C.  C.,  321), 
re  Bill  of  Lading  (14  I.  C.  C.,  346),  re  Tariffs  and  Classifications  (3  I.  C.  C.,  19). 

"Re  Proposed  Advances  in  Freight  Bates  (9  I.  C.  C.,  382). 

^Ee  Alleged  Unlawful  Rates  and  Practices  (10  I.  C.  C.,  473). 

*»Be  Eelative  Bates,  Export  and  Domestic  Traffic  (8  I.  C.  C.,  214). 


JURISDICTION  OF  THE  COMMISSION  25 

General  investigation  with  notice  and  opportunity  to  be  heard  is 
a  compliance  with  the  statute : 

INSTANCE. — In  re  Alleged  Excessive  Freight  Bates,  etc.  (4  I.  C.  C.,  116),  it 
was  held  that  where  there  was  an  investigation  concerning  the  reasonableness  of 
transportation  rates  and  notice  of  the  time  and  place  of  taking  testimony  had 
been  given  and  an  opportunity  afforded  carriers  for  calling  and  cross-examining 
witnesses,  that  such  a  proceeding  was  a  substantial  compliance  with  the  statute. 

Want  of  jurisdiction  over  a  carrier  does  not  preclude  an  investiga- 
tion into  its  relation  with  carriers  subject  to  the  act : 

INSTANCE. — In  Cosmopolitan  Shipping  Co.  v.  Hamburg-American  Packet  Co. 
(13  I.  C.  C.,  266),  it  was  held  that  while  the  Commission  may  not  have  jurisdic- 
tion over  certain  carriers,  such  as  ocean  carriers,  yet  it  is  not  precluded  from 
an  examination  into  the  relation  between  such  carriers  and  those  over  which  it 
has  jurisdiction. 

Foreign  rail  carriers  are  subject  to  a  general  investigation : 
INSTANCE. — In  re  Investigation  of  Acts  and  Doings  of  G.  T.  E.  Co.  (3  I.  C.  C., 
89)  it  was  held  that  foreign  [Canadian]  carriers  doing  business  in  this  country 
are  subject  to  the  act  to  regulate  commerce  and  also  subject  to  a  general  inves- 
tigation without  formal  complaint. 

State  statute  repealing  authority  of  complainant  will  not  prevent 
general  investigation: 

INSTANCE.— In  E.  Com.  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  13),  it  was  held 
that  where  a  complaint  had  been  filed  by  a  railroad  commission  in  the  interest 
of  carriers  and  shippers,  and  subsequent  to  the  filing  of  the  complaint,  the 
statute  had  repealed  the  authority  of  the  State  railroad  commission,  that  such  re- 
pealing law  could  not  operate  as  a  withdrawal  or  dismissal  of  the  complaint;  and 
further  that  to  abate  or  dismiss  the  proceeding  would  be  to  sacrifice  substance  to 
form  in  contravention  of  the  spirit  and  letter  of  the  act  and  of  the  rules  of  court 
in  analogous  cases. 

Sec.  34.  Jurisdiction  to  grant  relief  under  long  and  short  haul 
section. — The  Commission  may  grant  relief  against  the  provisions  of 
section  4,  relating  to  a  greater  compensation  in  the  aggregate  for  the 
transportation  of  passengers  or  of  like  kind  of  property,  under  sub- 
stantially similar  circumstances  and  conditions,  for  a  shorter  than  for 
a  longer  distance  over  the  same  line  in  the  same  direction,  the  shorter 
being  included  within  the  longer.  Early  in  the  history  of  the  Com- 
mission applications  for  such  relief  were  comparatively  frequent;  re- 
cently, however,  applications  of  this  nature  have  been  few.40 

The  Commission  will  exercise  discretion  in  granting  relief  from 
the  operation  of  the  fourth  section : 

INSTANCE.— In  re  petition  C.  H.  &  D.  E.  Co.  (6  I.  C.  C.,  323),  held,  that  the 
Commission  will  exercise  a  reasonable  and  lawful  discretion  in  determining  the 
description  and  exceptional  character  of  the  "special  cases"  by  which  the  Com- 

40  The  definite  meaning  of  sec.  4  is  difficult,  if  not  unascertainable,  as  the 
Commission  and  court  decisions  are  not  at  all  in  harmony.  Such  fact  may  ac- 
count for  the  lack  of  petitions  for  relief. 


26  JURISDICTION  OP  THE  COMMISSION 

mission  is  authorized  to  grant  relief,  and  also  in  the  extent  to  which  such  relief 
shall  be  granted. 

If  an  order  of  the  Commission  results  in  hardship,  the  carrier  may 
apply  for  relief  under  the  fourth  section : 

INSTANCE.— In  Fewell  v.  E.  &  D.  R.  Co.  (7  I.  C.  C.,  354),  held,  that  if  by  an 
order  of  the  Commission  injustice  or  undue  hardship  should  result  to  the  carrier, 
it  may  apply  for  relief  under  the  fourth  section,  as  authorized  in  the  proviso. 

Sec.  35.  Jurisdiction  of  the  Commission  to  make  an  order  upon  pe- 
tition— 

UNDER  SECTION  15 

(I)  Respecting  rates  and  practices. — Jurisdiction  to  make  an  order 
respecting  rates  and  practices  not  awarding  damages  is  conferred 
under  section  15.    The  essentials  preliminary  to  such  an  order  are: 
(A)  a  complaint  by  one  mentioned  in  section  13  of  the  act,  or  by  a 
common  carrier;  (B)  a  full  hearing;  and  (C)  an  opinion  that  any  of 
the  rates,  or  charges  whatsoever,  demanded,  charged,  or  collected  by 
any  common  carrier  or  carriers,  subject  to  the  provisions  of  the  act, 
for  the  transportation  of  persons  or  property,  as  defined  in  section 
1  of  the  act ;  or  that  any  regulations  or  practices  whatsoever  of  such 
carrier  or  carriers  affecting  such  rates,  are  unjust  or  unreasonable, 
or  unduly  discriminatory,  or  unduly  preferential  or  prejudicial,  or 
otherwise  in  violation  of  any  of  the  provisions  of  the  act. 

By  the  order  the  Commission  may  determine*1  and  prescribe42  (a) 
what  will  be  the  just  and  reasonable  rate  or  rates,  charge  or  charges, 
to  be  thereafter  observed  in  such  case  as  a  maximum  to  be  charged; 
(b)  and  what  regulation  or  practice  in  respect  to  such  transportation 
is  just,  fair  and  reasonable  to  be  thereafter  followed.  The  Commis- 
sion may  also  make  an  order,  if  the  conditions  precedent  have  been 
complied  with  that  the  carrier  shall  cease  and  desist  from  such  viola- 
tion to  the  extent  to  which  the  Commission  shall  find  the  same  to 
exist. 

The  order  under  this  section  notifies  the  carrier  to  cease  and  desist, 
on  or  before  a  day  named,  and  for  a  period  named,  from  charging, 
demanding,  collecting,  or  receiving  for  certain  transportation  the  pres- 
ent rates  (naming  them) ;  and  to  publish  and  charge,  after  a  day 
named  and  for  a  period  stated,  and  to  collect  and  receive  named 
rates  for  the  named  transportation.  The  order  usually  permits  car- 
riers to  make  rates  effective  in  less  time  than  the  statutory  notice.*3 

(II)  Establishing  through  routes  and  joint  rates. — When  no  rea- 
sonable or  practicable  through  route  exists,  the  Commission  may  es- 

41 "  Determine "  is  a  purely  judicial  word. 
0 ' '  Prescribe  "  is  a  legislative  term. 

"For  form  of  order  see  Nobles  Bros.  Gro.  Co.  v.  Ft.  W.  &  D.  C.  E.  Co.  (12  I. 
C.  C.,  242). 


JURISDICTION  OP  THE  COMMISSION  27 

tablish,  after  hearing,  a  through  route  and  joint  rate  as  maxima,  and 
prescribe  the  divisions  thereof,  and  the  terms  and  conditions  under 
which  a  through  route,  ordered,  shall  be  operated.44 

By  supplemental  order,  the  Commission  is  authorized  to  apportion 
joint  rates,  if  the  carriers  fail  to  agree  concerning  the  same. 

All  branch  roads  are  not  entitled  to  joint  rates : 

INSTANCE.— In  B.  V.  E.  Co.  v.  D.  L.  &  W.  E.  Co.  (14  I.  C.  C.,  191)  it  was  held 
that  "it  does  not  follow  that  all  branch  railroad  lines  having  switch  connection 
with  a  main  line  of  railroad  are  entitled  to  joint  rates." 

(Ill)  Respecting  allowances  to  owners  of  property. — The  Commis- 
sion may  by  order  fix  the  reasonable  charge  as  the  maximum  to  be 
paid  by  the  carrier  for  service  rendered  or  instrumentality  furnished 
by  the  owner  of  property  to  be  transported  under  the  act.45 

UNDER  SECTION  16 

Jurisdiction  to  award  reparation  is  conferred  by  section  16.  The 
requirements  are  that  there  shall  have  been  a  complaint  as  provided 
in  section  13  and  that  the  Commission  shall  have  determined  that  the 
party  complainant  is  entitled  to  an  award  of  damages  *"  under  the  pro- 
visions of  the  act.  The  order  directs  the  carriers  to  pay  to  the  com- 
plainant the  sum  awarded  on  or  before  a  day  "  named  therein. 

UNDER  SECTION  1 

Orders  may  be  made  by  the  Commission,  as  in  section  15,  under 
the  provisions  of  section  1,  relating  to  switch  connections.  The 
conditions  precedent  to  such  an  order  are  that  the  application  must 
be  made  by  a  shipper  or  lateral  railroad  and  there  must  have  been  a 
failure  to  install  and  operate  the  switch  after  application  in  writing 
therefor ;  and  that  the  Commission  has  heard  and  investigated  a  com- 
plaint in  accordance  with  section  13,  determined  the  safety  and  prac- 
ticability of  the  switch,  and  the  justification  and  reasonable  compen- 
sation therefor. 

Conditions  necessary  to  give  jurisdiction  over  switch  connections : 
INSTANCE.— In  E.  V.  E.  Co.  v.  D.  L.  &  W.  E.  Co.  (14  I.  C.  C.,  191)  the  Com- 
mission thus  stated  the  conditions  necessary  to  give  it  jurisdiction  over  branch 
railroads:    (1)    that   such   switch  connection   should  be   reasonably  practicable; 

**  Through  routes  and  rates  were  established  in  Gentry  v.  A.  T.  &  S.  F.  E.  Co. 
(13  I.  C.  C.,  171),  C.  E.  &  I.  C.  E.  &  L.  Co.  v.  C.  &  N.  W.  E.  Co.  (13  I.  C.  C., 
250).  Through  routes  and  rates  were  granted  by  defendant  before  opinion  in 
Long  v.  I.  E.  Co.  (14  I.  C.  C.,  116).  Through  routes  and  rates  previously 
existing  were  reestablished  in  S.  G.  &  L.  Co.  v.  A.  T.  &  S.  F.  E.  Co.  (14  I.  C.  C., 
364).  On  through  routes  and  rates  generally  see  Ee  Through  Boutes  and  Bates 
(12  I.  C.  C.,  163). 

45  Ee  Allowances  to  Elevators  by  U.  P.  E.  Co.  (14  L  C.  C.,  315). 

"While  the  statute  uses  the  word  "damages,"  by  custom  the  word  "repara- 
tion" is  more  common.  Sec.  13  alone  uses  the  word  "reparation." 

47  The  day  on  or  before  which  the  carrier  is  ordered  to  pay  is  generally  from 
thirty  to  forty-five  days  after  publication  of  the  order. 


28  JURISDICTION  OP  THE  COMMISSION 

(2)  that  it  can  be  put  in  with  safety;  (3)  that  it  will  furnish  sufficient  business 
to  justify  the  construction  and  maintenance  of  such  switch  connection.  In  this 
case  the  Commission  ordered  that  a  switch  connection  should  be  made  with  the 
defendant's  line,  with  an  existing  siding,  the  expense  of  the  connection  to  be 
borne  by  the  complainant. 

Commission  may  permit  location  of  switch  to  be  determined  by 
parties : 

INSTANCE.— In  Weleetka  L.  &  W.  Co.  v.  Ft.  S.  &  W.  E.  Co.  (12  I.  C.  C.,  503) 
the  Commission  refrained  from  making  an  order  respecting  switch  connections 
preferring  to  leave  the  location  thereof  largely  to  the  discretion  and  wisdom  of 
the  defendant;  and  thirty  days  were  allowed  the  contending  parties  to  reach  an 
agreement. 

Sec.  36.  Miscellaneous  judicial  powers  of  the  Commission. — The  Com- 
mission possesses  several  powers  which  are  the  same  or  akin  to  similar 
powers  given  to  or  inherently  exercised  by  judicial  bodies : 

(A)  Jurisdiction  to  issue  subpoenas  and  administer  oaths. — The 
power  of  the  Commission  to  issue  subpoenas  and  administer  oaths  is 
given  by  section  17,  as  follows : 

Either  of  the  members  of  the  Commission  may  administer  oaths  and  affirma- 
tions and  sign  subpoenas. 

Section  12  provides  that — 

for  the  purposes  of  this  act  the  Commission  shall  have  power  to  require,  by  sub- 
poana,  the  attendance  and  testimony  of  witnesses  and  the  production  of  all  books, 
papers,  tariffs,  contracts,  agreements,  and  documents  relating  to  any  matter  under 
investigation.  Such  attendance  of  witnesses,  and  the  production  of  such  docu- 
mentary evidence,  may  be  required  from  any  place  in  the  United  States,  at  any 
designated  place  of  hearing. 

Examiners  appointed  by  the  Commission  under  the  authority  con- 
ferred by  section  20  are  authorized  to  ' '  administer  oaths,  examine  wit- 
nesses, and  receive  testimony." 

(B)  Jurisdiction  to  grant  a  rehearing,  under  section  16a. — After  a 
decision,  order,  or  requirement  has  been  made  by  the  Commission,  any 
party  thereto  may  apply  for  a  rehearing  of  the  entire  or  a  specified 
part  of  the  case,  and  the  Commission  in  its  discretion  may  grant  the 
application.*1 

An  application  for  a  rehearing  does  not  operate  as  a  stay  or  ex- 
cuse compliance  with  an  order  issued,  but  the  Commission  may  issue 
a  special  order  suspending  the  original  order  pending  the  motion  or 
pending  rehearing. 

Under  the  former  statute  the  Commission  exercised  the  power  to 
grant  rehearings: 

INSTANCE. — In  Page  v.  D.  L.  &  W.  E.  Co.  (6  I.  C.  C.,  548)  held  that  the  Com- 
mission has  continuing  jurisdiction  over  the  rates  and  practices  of  carriers  sub- 
ject to  the  provisions  of  the  act  and  is  not  precluded  from  rehearing  a  particular 

48  For  practice  and  procedure  in  application  for  rehearing  see  sec.  152,  post. 


JURISDICTION  OF  THE  COMMISSION  29 

case  and  amending  or  modifying  its  original  order  by  the  refusal  of  the  Federal 
court  to  enforce  such  order,  especially  when  the  reasons  assigned  for  the  court's 
refusal  did  not  relate  to  the  principal  question  in  controversy  and  are  consistent 
with  the  approval  of  the  amended  or  modified  order. 

(c)  Jurisdiction  to  change  or  modify  an  order. — Section  16a  author- 
izes19 the  Commission  to  reverse,  change,  or  modify  an  order  if,  in 
its  judgment,  it  is  unjust  or  unwarranted.  And  when  an  order  has 
been  reversed,  changed  or  modified,  it  is  subject  to  the  same  pro- 
visions as  was  the  original  order. 

(D)  Power  to  appoint  special  agents  or  examiners. — The  power  to 
appoint  special  agents  or  examiners  was  conferred  by  section  7  of  the 
act  of  June  29,  1906,  amending  section  20  of  the  act  to  regulate  com- 
merce.   These  officials  are  of  two  classes:  (a)  special  agents  or  exam- 
iners to  inspect  and  examine  all  accounts,  records,  and  memoranda, 
and  (b)  special  agents  or  examiners  who  shall  have  power  to  adminis- 
ter oaths,  examine  witnesses  and  receive  testimony.     The  power  to 
appoint  referees  and  examiners  has  always  been  an  incident  of  courts 
of  superior  jurisdiction,  and  is  inherent  in  a  court  of  equity ;  *  the 
Commission   could  not,   however,   without  this  enabling   legislation, 
transfer  the  duties  of  the  nature  above  specified  to  deputies  or  em- 
ployees. 

(E)  Jurisdiction  to  make  rules  of  practice. — By  section  17  the  Com- 
mission may  make  a  general  rule  or  order  for  regulating  its  proceed- 
ings,51 form  of  notices  and  service  of  pleadings  and  orders ;  and  it  may 
amend  such  general  orders.      ^> 

Section  16a  gives  the  Commission  jurisdiction  to  make  general  rules 
concerning  applications  for  rehearings.62 

Sec.  37.  Jurisdiction  to  award  reparation. — Jurisdiction  to  award 
damages  under  the  provisions  of  the  act,  is  conferred  by  section  16, 
as  follows: 

That  if,  after  hearing  on  a  complaint  made  as  provided  in  section  thirteen  of 
this  act,  the  Commission  shall  determine  that  any  party  complainant  is  entitled 
to  an  award  of  damages  under  the  provisions  of  this  act  for  a  violation  thereof, 
the  Commission  shall  make  an  order  directing  the  carrier  to  pay  to  the  com- 
plainant the  sum  to  which  he  is  entitled  on  or  before  a  day  named. 

By  section  13,  those  in  whose  favor  such  an  order  can  be  made  are : 
"any  person,  firm,  corporation,  or  association,  or  any  mercantile, 
agricultural,  or  manufacturing  society,  or  any  body  politic  or  munici- 
pal organization,"  or  "railroad  commissioner  or  railroad  commission 

48  The  Commission  exercised  under  the  original  act  the  power  to  modify  its 
order.  See  sec.  153,  post. 

MKimberly  v.  Arms   (129  TL  S.,  512). 

51  The  Eules  of  Practice  have  been  made  in  pursuance  of  this  power,  see  Ap- 
pendix. 

52  For  the  rules  concerning  rehearings  see  Eules  of  Practice   (Appendix)    and 
sec.  152,  post.  N 

x     *  ^°  - 


30  JUEISDICTION  OP  THE  COMMISSION 

of  any  State  or  Territory."  A  common  carrier  complainant  would 
not  be  entitled  to  an  order  awarding  damages,  for  the  right  of  such 
an  one  to  complain  is  given  in  section  15  of  the  act;  and  the  Com- 
mission is  only  authorized  to  award  damages  upon  complaint  filed 
under  section  13. 

Associations,  bodies  politic,  or  municipal  organizations  are  not 
awarded  reparation  for  the  reason  that  such  complainants  are  unable 
to  prove  damages;  the  members  thereof,  however,  if  the  petition  be 
a  proper  one,  may  be  awarded  reparation  as  they,  and  not  the  com- 
plainant itself,  are  injured. 

An  order  awarding  damages,  must  by  section  14  be  predicated  on  an 
opinion  (report)  containing  the  findings  of  fact  on  which  the  award 
is  made. 

The  order  awarding  reparation,  if  based  on  a  practice  or  regulation, 
notifies  the  carrier  to  refrain  from  the  present,  or  from  re-establishing 
the  former,  practice,  and  to  pay  to  the  complainants  a  specified  sum, 
on  or  before  a  day  named ; M  if  the  practice  has  been  discontinued  or 
the  charge  assessed  unlawfully,  the  carrier  is  commanded  to  pay  to 
complainant  a  certain  sum  on  or  before  a  day  named.64 

It  needs  be  observed  that  an  order  of  the  Commission  awarding 
damages  does  not  have  the  validity  of  the  judgment  of  a  court  and 
is  not  obligatory  upon  the  carrier.  But  it  is  provided  (sec.  16)  that 
"it  shall  be  the  duty  of  every  common  carrier,  its  agents  and  em- 
ployees, to  observe  and  comply  with  such  orders  so  long  as  the  same 
shall  remain  in  effect;"  doubtless  "such  orders"  refers  to  orders 
awarding  damages  for  those  orders  are  specifically  mentioned  in  the 
preceding  parts  of  that  section,  while  subsequent  portions  of  the 
section  refer  to  orders  other  than  for  the  payment  of  money.  There 
is,  however,  a  distinct  obligation  to  obey  orders  of  the  Commission 
other  than  for  the  payment  of  money,  being  orders  made  under  the 
provisions  of  section  15,  for,  knowingly  failing  or  neglecting  to  obey 
any  order  under  that  section  subjects  the  carrier,  its  officers,  repre- 
sentatives, or  agents  or  receivers,  trustees  and  lessees  to  a  forfeiture  to 
the  United  States  in  the  sum  of  $5,000. 

Power  to  award  reparation  construed: 

INSTANCE. — In  Cattle  Kaisers'  Assn.  v.  C.  B.  &  Q.  E.  Co.  (10  I.  C.  C.,  83)  the 
Commission  construed  several  objections  to  its  jurisdiction  to  award  damages. 
In  disposing  of  the  case  originally  it  was  left  open  for  proof  of  damage  and 
questions  as  to  reparation  were  reserved  until  proof  be  made.  The  Commission 
state : 

"The  act  to  regulate  commerce  provides  that  any  person  suffering  damage  by 
failure  of  a  common  carrier  subject  thereto  to  obey  its  provisions,  may  apply 
to  the  Commission,  which  is  required  to  ascertain  what  damage  the  complainant 

"Blackwell  M.  &  E.  Co.  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.,  24). 
"England  v.  B.  &  O.  B.  Co.  (13  I.  C.  C.,  614). 


JURISDICTION  OP  THE  COMMISSION  31 

has  sustained,  if  any,  and  to  order  the  carrier  to  make  reparation  in  the  prem- 
ises. The  defendants  insist  at  the  outset,  with  great  earnestness,  that  this  por- 
tion of  the  act  is  unconstitutional  in  that  it  imposes  upon  an  administrative  body 
judicial  functions.  While  the  arguments  by  which  this  contention  is  supported 
have  been  urged  with  great  ability  it  is  our  impression  that  the  point  is  not  well 
taken.  The  order  for  reparation  is  not  obligatory  upon  the  carrier.  It  amounts 
simply  to  a  recommendation  which  can  only  be  enforced  by  a  suit  at  law  in  which 
full  opportunity  for  a  jury  trial  is  accorded.  Plainly,  the  Congress,  having  juris- 
diction of  this  subject,  might  create  a  body  with  authority  to  inquire  whether 
this  act  had  been  violated,  and  what  damages  had  been  sustained.  It  might 
probably  make  the  report  of  that  body  prima  facie  evidence  in  a  suit  brought 
by  the  person  sustaining  these  damages  for  their  recovery,  so  long  as  there  was 
preserved  to  the  defendants  a  trial  by  jury  in  due  form  of  law.  We  do  not, 
however,  deem  it  profitable  to  examine  the  authorities  cited  in  detail.  The  act 
creating  this  Commission  clearly  confers  that  authority  and  it  is  our  duty  to 
proceed  as  the  statute  requires,  unless  the  unconstitutionality  appears  beyond 
reasonable  doubt,  certainly  when,  as  here,  the  parties  affected  can  not  be  in- 
jured by  the  exercise  of  such  jurisdiction.  No  order  of  the  Commission  awarding 
damages  can  be  enforced  against  these  carriers,  not  a  dollar  of  their  property  can 
be  taken,  except  by  the  judgment  of  a  court  in  which  this  question  can  be  raised 
and  passed  upon.  We  hold,  therefore,  that  the  act  is  constitutional  and  valid  in 
this  respect." 

In  La  Salle  &  B.  C.  E.  Co.  v.  C.  &  N.  W.  E.  Co.  (13  I.  C.  C.,  610)  held  that  the 
power  of  the  Commission  to  award  reparation  does  not  extend  to  divisions  of 
rates  between  connecting  carriers. 

In  Eddelman  et  al.  v.  M.  V.  E.  Co.  (13  I.  C.  C.,  103)  held  that  the  Commission 
had  no  power  to  award  damages  for  the  failure  to  perform  a  contract  to  locate 
and  maintain  a  switch. 

In  Flaccus  G.  Co.  v.  C.  C.  C.  &  St.  L.  E.  Co.  (14  I.  C.  C.,  333)  held  that 
reparation  may  be  awarded  for  misrouting.  On  the  general  subject  of  mis- 
routing  see  Eule  No.  70,  Tariff  Circular  15-A. 

In  Perry  v.  F.  C.  &  P.  E.  Co.  (5  I.  C.  C.,  97)  the  Commission  held  that  the 
provisions  of  the  act  required  it  to  determine  what  reparation,  if  any,  should  be 
made  by  the  carriers  to  parties  injured  by  their  violations  of  law. 

In  MacLoon  v.  C.  &  N.  W.  E.  Co.  (5  I.  C.  C.,  84)  the  Commission  after  con- 
sidering the  several  sections  of  the  act  held  that  it  was  its  duty  to  pass  upon 
the  question  of  reparation  for  past  damages  whenever  a  claim  was  made  there- 
fore. 

Reparation  is  an  inadequate  remedy: 

INSTANCE. — In  McGrew  v.  M.  P.  E.  Co.  (8  I.  C.  C.,  630)  the  Commission  said 
that  the  remedy  by  way  of  damages  for  unlawful  rates  is  thoroughly  inadequate 
and  inconsistent,  but  that  it  is  apparently  the  remedy  prescribed  by  the  act  and 
the  only  remedy  which  is  afforded  to  a  shipper. 

Jurisdiction  over  carriers  is  essential  to  reparation : 
INSTANCE. — In  Capehart  v.  L.  &  N.  E.  Co.  (4  I.  C.  C.,  265)  it  was  held  that  no 
recovery  by  way  of  reparation  could  be  had  in  a  proceeding  where  the  Commis- 
sion had  no  jurisdiction  of  the  carriers  or  of  the  traffic. 

Grounds  for  reparation  must  exist : 

INSTANCE.— In  E.  Com.  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  13)  where  it  appears 
that  the  carriers  had  not  wilfully  omitted  or  failed  to  notify  the  Commission 


32  JURISDICTION  OF  THE  COMMISSION 

and  the  public  of  the  advance  in  rates  complained  of,  nor  that  any  one  had  sus- 
tained damage  or  injury  by  reason  of  the  failure  or  omission,  there  was  not 
ground  for  recommendation  of  reparation. 

The  measure  of  damages  for  unreasonable  rates: 

INSTANCE.— In  Flint  &  W.  Mfg.  Co.  v.  L.  S.  &  M.  S.  E.  Co.  (14  I.  C.  C., 
336)  the  Commission  declined  to  accept  the  contention  of  one  of  the  defendants 
that  the  act  requires  a  carrier  to  collect  and  retain  the  published  rate  and  that 
the  shipper  could  not  recover  any  part  thereof  in  any  proceeding,  and  affirming 
previous  cases  awarded  reparation,  measuring  the  same  by  the  difference  between 
the  published  rate  and  the  rate  found  to  be  reasonable  as  applied  to  the  ship- 
ment. See  also  Perry  v.  F.  C.  &  P.  E.  Co.  (5  I.  C.  C.,  97). 

Damages  will  not  be  awarded  where  trial  by  jury  is  required : 
INSTANCE.— In  Councill  v.  W.  &  A.  E.  Co.  (1  I.  C.  C.,  339)  the  Commission  held 
that  it  would  not  go  into  the  question  of  money  damages  when  the  claim  is  in 
the  nature  of  an  action  of  trespass  for  the  reason  that  the  defendant  is  con- 
stitutionally entitled  in  such  a  case  to  a  trial  by  jury. 

Reparation  against  a  receiver,  after  order,  must  be  presented  to  the 
courts: 

INSTANCE. — In  Loud  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  529)  held  that  the  question 
whether  property  in  the  hands  of  a  receiver  of  a  carrier  after  the  matters  com- 
plained of  before  the  Commission  are  alleged  to  have  occurred  is  subject  to  an 
order  of  reparation  issued  by  the  Commission,  is  one  to  be  presented  .to  and  dis- 
posed of  by  the  courts  on  proceedings  therein  for  the  enforcement  of  the  order. 

Sec.  38.  Carriers  over  which,  the  Commission  has  or  has  not  jurisdic- 
tion.65— By  section  1  the  act  applies  to  and  the  Commission  therefore 
has  jurisdiction  over  certain  common  carriers  engaged  in  a  defined 
manner  and  in  transporting  a  specified  character  of  commerce.  The 
term  "common  carrier"  doubtless  means  what  is  ordinarily  under- 
stood by  that  term;  under  the  act  it  comprehends  also  by  definition 
and  inclusion  "any  corporation  or  any  person  or  persons  engaged  in 
the  transportation  of  oil  or  other  commodity,  except  water  and  ex- 
cept natural  or  artificial  gas,  by  means  of  pipe  lines,  or  partly  by 
pipe  lines  and  partly  by  water ' '  and  ' '  express  companies  and  sleeping 
ear  companies."6* 

55  In  determining  the  jurisdiction  of  the  Commission  it  is  often  difficult  to  say 
whether  a  carrier  is  subject  to  the  jurisdiction  of  the  Commission  because  it 
handles  the  commerce  specified  in  the  act,  or  because  the  carrier  is  made  subject 
to  the  act,  for  either  of  which  reasons  the  Commission  may  have  jurisdiction. 
For  jurisdiction  of  the  Commission  as  affected  by  the  character  of  commerce  see 
sec.  39,  post. 

W"A  common  or  public  carrier  is  one  who,  by  virtue  of  his  business  or  calling, 
undertakes,  for  compensation,  to  transport  personal  property  from  one  place  to 
another,  either  by  land  or  by  water,  and  deliver  the  same,  for  all  such  as  may 
choose  to  employ  him;  and  every  one  who  undertakes  to  carry  and  deliver,  for 
compensation,  the  goods  of  all  persons  indifferently,  is,  as  to  liability,  to  be  deem- 
ed a  common  carrier. ' ' — Moore  on  Carriers,  p.  18.  The  weight  of  authority  is 
that  express  companies,  particularly  those  operating  over  railroads,  are  common 
carriers  of  those  goods  which  they  undertake  to  carry,  but  the  Commission  held 
under  the  original  act  that  it  did  not  apply  to  this  class  of  business  unless  as 
an  incident  of  railroad  operation  (re  Express  Companies,  1  I.  C.  C.,  349 ;  see  also 


JURISDICTION  OP  THE  COMMISSION  33 

The  defined  manner  in  which  the  common  carrier  is  engaged  is,  as 
to  pipe  lines  as  above  set  forth;  as  to  others,  they  must  be  "engaged 
in  the  transportation  of  passengers  or  property  wholly  by  railroad 
(or  partly  by  railroad  and  partly  by  water  when  both  are  used  under 
a  common  control,  management,  or  arrangement  for  a  continuous  car- 
riage or  shipment)."  (Sec.  I).67 

The  term  "railroad"  means  what  is  ordinarily  meant  by  that  word, 
but  the  act  provides  (sec.  1)  that  it  "shall  include  all  bridges  and 
ferries  used  or  operated  in  connection  with  any  railroad,  and  also  all 
the  road  in  use  by  any  corporation  operating  a  railroad,  whether 
owned  or  operated  under  a  contract,  agreement,  or  lease,  and  shall 
also  include  all  switches,  spurs,  tracks,  and  terminal  facilities  of  every 
kind  used  or  necessary  in  the  transportation  of  the  persons  or  prop- 
erty designated  herein,  and  also  all  freight  depots,  yards,  and  grounds 
used  or  necessary  in  the  transportation  or  delivery  of  any  of  said 
property."  (Sec.  1).M 

The  specified  character  of  commerce  is  "passengers  or  property" 
when  transportated — 

from  one  State  or  Territory  of  the  United  States,  or  the  District  of  Columbia,  to 
any  other  State  or  Territory  of  the  United  States,  or  the  District  of  Columbia, 
or  from  one  place  in  a  Territory  to  another  place  in  the  same  Territory,  or  from 
any  place  in  the  United  States  to  an  adjacent  foreign  country,  or  from  any 
place  in  the  United  States  through  a  foreign  country  to  any  other  place  in  the 
United  States.  (See.  1.) 

The  same  section  makes  the  provisions  of  the  act  apply  to — 

the  transportation  in  like  manner  [i.  e.,  wholly  by  railroad,  or  partly  by  railroad 
and  partly  by  water  when  both  are  used  under  a  common  control,  management, 
or  arrangement  for  a  continuous  carriage  or  shipment]  from  any  place  in  the 
United  States  to  a  foreign  country  and  carried  from  such  place  to  a  port  of 
transshipment,  or  shipped  from  a  foreign  country  to  any  place  in  the  United 

U.  S.  v.  Morsman,  42  Fed.,  448).  Sleeping-car  companies,  on  the  contrary,  have 
not  been  held  to  be  common  carriers  and  liable  as  such  (Moore  on  Carriers,  p. 
55)  ;  but  under  the  present  interstate  commerce  law  they  have  been  made  de- 
fendants to  proceedings  not  as  yet  determined. 

67  In  C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.   (162  U.  S.,  184)  the  Supreme  Court 
said:  "When  goods  are  shipped  under  a  through  bill  of  lading,  from  a  point  in 
one  State  to  a  point  in  another  and  when  such  goods  are  received  in  transit  by 
a  State  common  carrier,  under  a  conventional  division  of  the  charges,  such  car- 
rier must  be  deemed  to  have  subjected  its  road  to  an  arrangement  for  a  con- 
tinuous carriage  or  shipment  within  the  meaning  of  the  act  to  regulate  commerce. 
When  we  speak  of  a  through  bill  of  lading  we  are  referring  to  the  usual  method 
in  use  by  connecting  companies,  and  must  not  be  understood  to  imply  that  a  com- 
mon  control,   management,   or  arrangement   might   not   be   otherwise   manifest." 
For  other  interpretations  of  the  language  of  the  statute  see  Boston  F.  &  P.  Ex. 
v.  N.  Y.  &  N.  E.   (4  I.  C.  C.,  664),  Perry  v.  F.  C.  &  P.  E.  Co.   (5  I.  C.  C.,  97), 
E.  Com.  v.  Clyde  S.  S.  Co.   (5  I.  C.  C.,  324),  U.  S.  v.  Wood   (145  Fed.,  504), 
U.  S.  v.  Camden  Iron  Works  (150  Fed.,  216),  Ee  Through  Eoutes  and  Bates  (12 
I.  C.  C.,  163). 

68  For  a  discussion  of  what  is  meant  by  the  term  "railroad"  see  Elliott  on  Eail- 
roads,  2d  ed.,  sec.  4  and  citations;   the  term  is  one  without  a  settled  and  well- 
defined  meaning  and  what  it  means  must  depend  on  the  connection  in  which  it  is 
used.     The  indefiniteness  of  the  term  caused  the  Congress  to  broaden  its  meaning. 


34  JURISDICTION  OF  THE  COMMISSION 

States  and  carried  to  such  place  from  a  port  of  entry  either  in  the  United  States 
or  an  adjacent  foreign  country. 

The  term  "transportation"  in  addition  to  its  usual  meaning  shall 
by  the  terms  of  the  act  (sec.  1)  include  cars  and  other  vehicles  and  all 
instrumentalities  and  facilities  of  shipment  or  carriage,  irrespective  of 
ownership  or  of  any  contract,  express  or  implied,  for  the  use  thereof 
and  all  services  in  connection  with  the  receipt,  delivery,  elevation,  and 
transfer  in  transit,  ventilation,  refrigeration  or  icing,  storage,  and 
handling  of  property  transported.58 

Carriers  handling  import  and  export  commerce : 

INSTANCE.— In  N.  Y.  B.  of  T.  &  T.  v.  P.  R.  Co.  (4  I.  C.  C.,  447)  held  that  the 
act  to  regulate  commerce  specifically  provides  for  the  regulation  of  the  transporta- 
tion of  foreign  merchandise  when  brought  from  a  foreign  port  of  shipment  to  a 
port  of  entry  of  the  United  States  upon  a  through  bill  of  lading,  or  when  trans- 
ported from  a  foreign  port  to  a  port  of  entry  of  a  foreign  country  adjacent  to 
the  United  States  and  transported  from  such  port  of  entry  to  a  place  of  destina- 
tion within  the  United  States  upon  a  through  bill  of  lading.  (See  Rule  86,  Ap- 
pendix.) Compare  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197),  Armour  Packing 
Co.  v.  U.  8.  (No.  470,  Supreme  Court,  Oct.  term  1907),  Re  Relative  Rates  Upon 
Export  and  Domestic  Traffic  in  Grain  (8  I.  C.  C.,  214),  Kemble  v.  B.  &  A.  R. 
Co.  (8  I.  C.  C.,  110). 

In  Re  Investigation  of  Acts  and  Doings  of  G.  T.  R.  Co.  of  Canada  (3  I.  C.  C., 
89)  it  was  held  that  the  provisions  of  the  act  to  regulate  commerce  apply  to  for- 
eign as  well  as  to  domestic  carriers  engaged  in  the  transportation  of  passengers 
or  property  for  a  continuous  carriage  or  shipment  from  a  place  in  the  United 
States  to  a  place  in  an  adjacent  foreign  country  and  such  carriers  are  subject 
to  all  of  the  regulations  appliable  to  domestic  carriers,  respecting  reports  and 
filing  of  schedules  and  are  subject  to  the  jurisdiction  of  the  Commission. 

Jurisdiction  over  carriers  handling  commerce  between  points  in 
same  State  if  it  passes  through  another  State : 

INSTANCE. — In  Milk  Producers'  &  P.  Assn.  v.  D.  L.  &  W.  R,  Co.  (7  I.  C.  C., 
92)  held  that  a  carrier  engaged  in  transportation  of  commodities  from  points  in 
the  State  of  New  York  through  the  State  of  New  Jersey  to  the  city  of  New 
York  is  subject  to  regulation  of  the  act,  but  traffic  originating  in  the  State  of 
New  Jersey  and  destined  to  the  city  of  New  York,  but  which  is  delivered  to  the 
consignees  at  Jersey  City  and  the  rates  on  which  are  made  to  Jersey  City  is 
intrastate  traffic,  and  over  it  and  the  carriers  transporting  it  the  Commission 
has  no  jurisdiction.  (N.  J.  F.  Ex.  v.  C.  R.  Co.,  2  I.  C.  C.,  142.) 

In  U.  8.  v.  D.  L.  &  W.  R.  Co.  (152  Fed.,  269)  held  that  traffic  from  New 
York  City  to  Buffalo,  N.  Y.,  which  passed  through  New  Jersey  is  interstate  com- 
merce and  is  subject  to  the  provisions  of  the  Elkins  law. 

In  New  Orleans  C.  Ex.  v.  C.  N.  O.  &  T.  P.  R.  Co.  (2  L  C.  C.,  375)  the  Com- 
mission held  that  commerce  between  points  in  the  same  State,  but  which  being 
carried  from  one  place  to  the  other  passes  through  another  State  is  interstate 
commerce  and  subject  to  regulation  by  the  provisions  of  the  act. 

68  Transportation  is  ' '  carriage  of  persons  or  commodities  from  one  place  to 
another"  (Standard  Dictionary).  The  term  may  include  taking  of  petroleum 
from  one  place  to  another  by  pipes  laid  underground  (Columbia  Conduit  Co.  v. 
Com.,  90  Pa.,  307). 


JURISDICTION  OP  THE  COMMISSION  35 

Intrastate  carriers  may  become  subject  to  the  act : 

INSTANCE.— In  Mattingly  v.  P.  Co.  (3  I.  C.  C..  592)  held  that  when  a  State 
carrier  engages  in  interstate  commerce  it  becomes  a  national  instrumentality  for 
the  purposes  of  such  commerce,  and  is  subject  to  regulation  by  Congress  and  to 
the  jurisdiction  of  the  Commission. 

In  Baer  Bros.  M.  Co.  v.  M.  P.  B.  Co.  (13  I.  C.  C.,  329)  it  was  held  that  a 
railway  company  whose  road  lies  entirely  within  the  limits  of  a  single  State 
becomes  subject  to  the  act  by  participating  in  through  movement  of  traffic  from 
a  point  in  another  State  to  a  point  in  the  State  within  which  it  is  located  al- 
though its  own  service  is  performed  entirely  within  the  latter  State.  (Affirmed 
in  Leonard  v.  K.  C.  S.  E.,  573.) 

In  Ee  A.  W.  &  B.  E.  Co.  (1  I.  C.  C.,  315)  it  was  held  that  a  railroad  com- 
pany whose  line  is  entirely  within  one  State  issues  through  bills  of  lading  over 
its  connecting  lines  to  points  in  other  States  and  makes  through  rates  falls  under 
the  provision  of  the  interstate  commerce  act. 

Water  carriers  may  become  subject  to  the  act : 

INSTANCE. — In  E.  Com.  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  13)  held  that  the  Clyde 
Steamship  Company  and  other  similar  companies  are  common  carriers  engaged 
in  interstate  commerce  by  reason  of  an  arrangement  with  rail  carriers,  and  there- 
fore subject  to  the  jurisdiction  of  the  Commission. 

Eeceivership  does  not  preclude  jurisdiction  of  the  Commission : 
INSTANCE.— In  E.  Com.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324)  held  that  the  fact 
of  a  receivership  for  a  defendant  carrier  after  complaint  filed  should  not  inter- 
fere with  the  progress  of  the  proceeding  brought  merely  for  the  purpose  of  railway 
regulations.  Affirmed,  Board  of  Trade  v.  A.  M.  E.  Co.  (6  I.  C.  C.,  1),  and  it 
was  stated  in  Independent  Eefiners'  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (6  I.  C.  C., 
378)  that  receivers  of  railroad  companies  are  common  carriers,  subject  to  the 
provisions  and  requirements  of  and  to  regulation  under  the  act  to  regulate  com- 
merce. Leave  to  sue  a  receiver  before  the  Commission  is  not  necessary  to  give 
the  Commission  jurisdiction.  (May  v.  McNeill,  receiver,  6  I.  C.  C.,  520.) 

Federal  charter  does  not  preclude  jurisdiction  of  the  Commission : 
INSTANCE. — In  Eaworth  v.  N.  P.  E.  Co.  (5  I.  C.  C.,  234)  held  that  because  a 
railroad  company  is  chartered  by  Federal  authority  it  may  nevertheless  be,  and 
in  this  case  was,  subject  to  the  provisions  of  the  act  and  to  the  jurisdiction  of  the 
Commission.     Affirmed  (Merchants'  Union  v.  N.  P.  E.  Co.,  5  I.  C.  C.,  478). 

Electric  railway  lines  may  be  subject  to  the  act: 

INSTANCE. — In  Willson  v.  E.  E.  Co.  (7  I.  C.  C.,  83)  held  that  a  carrier  oper- 
ating an  electric  line  lying  partly  in  the  District  of  Columbia  and  partly  in 
Maryland  is  subject  to  the  jurisdiction  of  the  Commission  although  it  was  con- 
structed upon  or  along  public  highways  and  a  street  surface  road  for  the  con- 
venience of  passengers. 

The  Commission  has  no  jurisdiction  over  those  engaged  in  the 
transportation  of  passengers  and  property  wholly  within  a  State;  "the 
provisions  of  this  act  shall  not  apply  to  the  transportation  of  passen- 
gers and  property,  or  to  the  receiving,  delivering,  storage,  or  handling 
of  property  wholly  within  one  State  and  not  shipped  to  or  from  a 
foreign  country  from  or  to  any  State  or  Territory  as  aforesaid," 
proviso  of  section  1. 


36  JURISDICTION  OP  THE  COMMISSION 

The  act  is  not  applicable  to  carriers  operating  wholly  by  water,90 
and  over  them  operating  independently  the  Commission  has  no  juris- 
diction as  to  rates  and  practices  but  may  inquire  into  their  relation 
to  carriers  subject  to  the  act.*1 

Intrastate  carriers  not  subject  to  the  act : 

INSTANCE.— In  Mo.  &  Ills.  E.  E.  T.  &  L.  Co.  v.  C.  G.  &  8.  W.  E.  Co.  (1  I.  C. 
C.,  30)  it  was  held  that  delivery  of  merchandise  to  a  carrier  for  transportation 
from  one  point  to  another  in  the  same  State  which  the  owner  intends  to  have 
further  transported  into  another  State  does  not  make  the  first  transportation 
interstate  commerce  or  render  the  carriers  subject  to  the  control  of  the  Commis- 
sion in  respect  to  it  even  though  the  first  carrier  may  be  informed  of  the  ulti- 
mate destination  of  the  merchandise. 

In  Heck  v.  E.  T.  V.  &  G-.  E.  Co.  (1  I.  C.  C.,  495)  held  that  a  short  railroad 
chartered  by  a  State  but  never  owning  any  rolling  stock  or  operating  its  road, 
but  used  as  a  means  of  conducting  interstate  traffic  and  operated  by  companies 
owning  connecting  interstate  roads  was  one  of  the  facilities  and  instrumentalities 
and  that  the  carriers  using  it  are  subject  to  the  provisions  of  the  act. 

In  C.  M.  &  St.  P.  E.  Co.  v.  Becker  (32  Fed.,  849)  held  that  "switching"  is 
local  and  has  no  reference  to  interstate  shipment,  but  may  be  regulated  by  State 
commission,  by  virtue  of  the  police  power. 

In  Cattle  Eaisers'  Assn.  v.  Ft.  W.  &  D.  C.  E.  Co.  (7  I.  C.  C.,  513)  held  that  a 
stockyards  company  having  under  its  charter  the  option  to  become  a  common 
carrier  or  not  and  permitting  certain  carriers  to  use  its  tracks  imposing  for  the 
use  thereof,  a  trackage  charge  is  not  a  common  carrier  engaged  in  the  transporta- 
tion within  the  meaning  of  section  one  of  the  act,  and  not  subject  to  the  jurisdic- 
tion of  the  Commission. 

Sec.  39.  Jurisdiction  of  Commission  as  affected  by  character  of  com- 
merce.82— As  the  act  applies  to  certain  designated  transportation  agen- 
cies, engaged  in  a  defined  manner,  in  the  transportation  of  a  specified 
character  of  commerce,  and  as  the  jurisdiction  of  the  Commission  over 
carriers  is  in  part  dependent  upon  the  fact  whether  they  be  engaged 
in  the  defined  manner,  in  transporting  the  specified  character  of 
commerce,  it  becomes  necessary  to  ascertain  the  commerce  to  which  the 
act  applies.  If  a  carrier  be  subject  to  the  act  and  hence  to  the  juris- 
diction  of  the  Commission  respecting  a  portion  of  its  traffic,  it  does 
not  follow  that  the  jurisdiction  of  the  Commission  extends  to  all  the 
traffic  which  the  same  carrier  transports;  thus,  the  Commission  may 
have  jurisdiction  over  the  "A"  railroad  respecting  the  interstate 
traffic  handled  by  it,  but  it  has  no  jurisdiction  over  such  carrier  re- 
specting the  intrastate  traffic  handled  by  it;  so,  also,  where  the  lines 
of  a  railroad  are  wholly  within  one  State,"*  and  it  is  not  handling  in- 

80  Ex  Parte  Koehler  (30  Fed.,  869). 

81  Cosmopolitan  Shipping  Co.  v.  Hamburg- American  Packet  Co.    (13  I.   C.  C., 
266). 

**  Carriers  may  be  subject  to  the  jurisdiction  of  the  Commission  because  of 
either  of  two  reasons  (1)  that  the  provisions  of  the  act  apply  to  the  carriers  as 
such,  or  (2)  that  they  handle  the  commerce  specified  in  the  act.  For  the  car- 
riers over  which  the  Commission  has  jurisdiction  see  sec.  38,  ante. 

"In  C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  184)  the  court  said:     "It 


JURISDICTION  OP  THE  COMMISSION  37 

terstate  traffic,  or  is  not  a  common  carrier,6*  and  it  is  not  subject  to 
the  jurisdiction  of  the  Commission. 

Intrastate  carrier  engaged  in  handling  interstate  commerce  is  sub- 
ject to  the  act: 

INSTANCE. — In  Pennsylvania  State  Millers'  Assn.  v.  P.  &  E.  E.  Co.  (8  I.  C.  C., 
531)  the  Comnlission  said:  "It  is  well  settled  that  a  railway  company  whose  road 
is  wholly  within  the  bounds  of  a  single  State,  'when  it  voluntarily  engages  as 
a  common  carrier  in  interstate  commerce  by  making  an  arrangement  for  a  con- 
tinuous carriage  or  shipment  of  goods  and  merchandise,  is  subject,  so  far  as  such 
traffic  is  concerned,  to  the  regulations  and  provisions  of  the  act  to  regulate  com- 
merce,' "  citing  I.  C.  C.  v.  D.  G.  H.  &  M.  E.  Co.  (167  U.  S.  642),  C.  N.  O. 
&  T.  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  184),  and  The  Daniel  Ball  (10  Wall.,  565). 

In  the  course  of  decisions  by  the  Commission  and  the  courts  the 
commerce  over  which  the  Commission  has  jurisdiction  and  as  well 
commence  over  which  the  Commission  has  not  jurisdiction  has,  of 
necessity,  been  in  part  marked  out.  The  statute,  it  will  be  observed, 
enacts  that  the  provisions  of  the  act  shall  apply  to  certain  common 
carriers  and  to  certain  others  (made  common  carriers  by  the  act) 
engaged  in  certain  transportation ;  the  Commission  is  given  authority 
to  receive  complaints  against  carriers  subject  to  the  act,  to  order 
them  to  cease  and  desist  from  violations  thereof,  and  to  "execute  and 
enforce"  the  act.  The  jurisdiction  of  the  Commission  is  not  there- 
fore as  clearly  defined  as  one  might  wish.65  The  Commission  is  not 
given  jurisdiction  in  terms  or  control  over  any  commerce;  such 
powers  as  it  has  over  commerce  is  through  the  medium  of  the  hand- 
lers of  commodities,  moving  by  means  of  specified  agencies  and  be- 
tween specified  points;  commerce  is  thus  reached  indirectly  and  not 
directly.  In  determining  the  exact  jurisdiction  of  the  Commission 
there  has  frequently  arisen  the  question  of  the  particular  kind  of 
commerce  which  is  within  the  purview  of  the  act.  If  the  transporta- 

may  be  true  that  the  'Georgia  Eailroad  Company'  as  a  corporation  of  the  State 
of  Georgia,  and  whose  entire  road  is  within  that  State,  may  not  be  legally  com- 
pelled to  submit  itself  to  the  provisions  of  the  act  of  the  Congress,  even  when 
carrying,  between  points  in  Georgia,  freight  that  has  been  brought  from  another 
State.  It  may  be  that  if,  in  the  present  case,  the  goods  of  the  James  &  Mayer 
Buggy  Company  had  reached  Atlanta,  and  there  and  then,  for  the  first  time  and 
independently  of  any  existing  arrangement  with  the  railroad  companies  that  had 
transported  them  thither,  the  Georgia  Eailroad  Company  was  asked  to  transport 
them,  whether  to  Augusta  or  to  Social  Circle,  that  company  could  undertake  such 
transportation  free  from  the  control  of  any  supervision  except  that  of  the  State 
of  Georgia.  But  when  the  Georgia  Eailroad  Company  enters  into  the  carriage  of 
foreign  freight,  by  agreeing  to  receive  the  goods  by  virtue  of  foreign  through 
bills  of  lading,  and  to  participate  in  through  rates  and  charges,  it  thereby  be- 
comes part  of  a  continuous  line,  not  made  by  a  consolidation  with  the  foreign 
companies,  but  made  by  an  arrangement  for  the  continuous  carriage  or  shipment 
from  one  State  to  another,  and  thus  becomes  amenable  to  the  Federal  act  in  re- 
spect to  such  interstate  commerce." 

64  Cattle  Eaisers'  Assn.  of  Texas  v.  Ft.  W.  &  D.  C.  E.  Co.  (7  I.  C.  C.,  513). 

"In  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197)  the  Supreme  Court  said:  "The 
powers  of  the  Commission  are  not  very  clearly  denned  in  the  act,  nor  is  its  method 
of  procedure  very  distinctly  outlined." 


38  JURISDICTION  OP  THE  COMMISSION 

tion  agency  falls  within  the  purview  of  the  act  then  the  Commission 
has  jurisdiction  of  the  commerce  handled  by  it;  if  the  carrier  does 
not  come  within  the  act  then  neither  does  the  commerce  transported 
by  it. 

It,  therefore,  becomes  necessary  frequently  to  know  what  particular 
kinds  of  commerce  have  been  held  to  be  within  and  without  the 
statute. 

Commission  has  jurisdiction  over  export  and  import  commerce: 

INSTANCE. — In  T.  &  P.  B.  Co.  v.  I.  C.  C.  (162  U.  S.,  197)  the  Supreme  Court 
after  considering  the  act  to  regulate  commerce  state:  "It  would  be  difficult  to 
use  language  more  unmistakably  signifying  that  the  Congress  had  in  view  the 
whole  field  of  commerce  (excepting  commerce  wholly  within  a  State)  as  well 
that  between  the  States  and  Territories  as  that  going  to  or  coming  from  for- 
eign countries.  *  *  *  Having  thus  included  in  its  scope  the  entire  commerce 
of  the  United  States,  foreign  and  interstate,  and  subjected  to  its  regulations  all 
carriers  engaged  in  the  transportation  of  passengers  or  property,  by  whatever 
instrumentalities  of  shipment  or  carriage,  the  [first]  section  proceeds  to  declare 
that  'all  charges  made  *  *  *  shall  be  reasonable  and  just.'  " 

In  Armour  P.  Co.  v.  United  States  (209  U.  S.,  56;  s.  C.  82  C.  C.  A.,  135;  153 
Fed.,  1),  the  court,  referring  to  the  kind  of  commerce  to  which  the  act  applies 
said:  "It  is  further  contended  by  petitioners  that  the  statutes  have  no  appli- 
cation to  a  shipment  on  a  through  bill  of  lading  from  an  interior  point  in  the 
United  States  to  a  foreign  port.  It  is  alleged  that  the  Elkins'  law  refers  to  the 
original  interstate  commerce  act,  and  that  its  terms  do  not  include  such  ship- 
ments. Analyzing  the  first  section  of  the  act  (24  Stat.  L.,  379  ch.  104,  U.  S. 
Comp.  Stat.,  1901,  p,  3154),  it  is  said  that  it  applies  to  the  following  kinds  of 
commerce:  (a)  interstate  commerce;  (b)  commerce  between  the  United  States 
and  an  adjacent  foreign  country;  (c)  commerce  between  places  in  the  United 
States  passing  through  a  foreign  country;  (d)  commerce  from  the  United  States 
to  a  foreign  country,  only  while  being  transported  to  a  point  of  transshipment; 
(e)  commerce  from  a  foreign  country  to  points  in  the  United  States,  but  only 
while  being  carried  from  port  of  entry  either  in  the  United  States  or  an  adja- 
cent foreign  country.  And  it  is  contended  that  section  6,  as  amended  (25  Stat.  L., 
855,  chap.  382,  U.  S.  Comp.  Stat.,  1901,  p.  3158),  does  not  require  the  filing  of 
through  export  tariffs. 

"The  purpose  of  the  Congress  to  embrace  the  whole  field  of  interstate  com- 
merce is  made  apparent  by  the  exclusion  only  of  wholly  domestic  commerce  in  the 
last  clause  of  section  1  of  the  original  act  of  1887,  and  in  the  declaration  of  the 
scope  and  purpose  of  the  act,  declared  in  its  title.  (T.  &  P.  E.  Co.  v.  I.  C.  C.,  162 
U.  S.,  197).  There  is  no  attempt  in  the  language  of  the  act  to  exempt  such 
foreign  commerce  as  is  carried  on  a  through  bill  of  lading;  on  the  contrary,  the 
act  in  terms  applies  to  the  transportation  of  property  shipped  from  any  place 
in  the  United  States  to  a  foreign  country  and  carried  from  such  place  to  a  port 
of  transshipment. 

"What  reasonable  ground  is  there  for  supposing  that  the  Congress  intended 
to  exercise  no  control  over  such  commerce  if  it  happens  to  be  billed  through  to 
the  foreign  port?  Such  construction  would  place  such  important  commerce  ship- 
ped in  the  United  States  to  a  port  for  transshipment  abroad  wholly  outside  the 
restrictions  of  the  law,  and  enable  shippers  to  withdraw  such  commerce  from  the 
regulations  enforced  against  other  interstate  commerce  by  the  expedient  of  a 
through  bill  of  lading.  Take  the  present  case.  The  through  route  is  obtained 


JURISDICTION  OP  THE  COMMISSION  39 

by  adding  the  ocean  rate  to  the  inland  rate.     There  is  no  contractual  relation 
between  the  railroad  carrier  and  the  ocean  carrier. 

' '  The  ocean  rate  is  uncertain  and  variable,  depending  upon  time  of  sailing 
and  available  space.  The  accommodation  for  ocean  shipment  was  obtained  by 
the  shipper  and  by  it  made  known  to  the  inland  carrier.  We  think  the  language 
of  the  statute,  read  in  the  light  of  the  manifest  purpose  of  its  passage,  shows 
the  intent  of  the  Congress  to  bring  interstate  commerce  within  the  control  of  the 
provisions  of  the  law  up  to  the  time  of  ocean  shipment.  This  construction  is  re- 
inforced by  the  broad  provisions  of  section  6  of  the  act  as  to  publishing 
schedules,  showing  rates,  fares,  and  charges,  and  filing  the  same  with  the  In- 
terstate Commerce  Commission.  That  such  rates,  notwithstanding  through  bills 
of  lading,  were  subject  to  the  provisions  of  the  act,  was  held,  up6n  full  consid- 
eration, and  rightfully,  as  we  think,  by  the  Interstate  Commerce  Commission." 
(Ee  Tariffs  on  Export  and  Import  Traffic,  10  I.  C.  C.,  55). 

In  Kemble  v.  B.  &  A.  E.  Co.  (8  I.  C.  C.,  110)  the  Commission  held  that  ex- 
port and  import  traffic  was  not  removed  from  the  jurisdiction  of  the  Commission 
by  the  decision  in  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197),  but  that  on  the 
contrary  the  effect  of  that  decision  was  to  extend  the  Commission's  jurisdiction; 
and  that  the  Commission  has  full  authority  to  pass  upon  grievances  of  any  in- 
dividual or  locality  which  is  alleged  to  arise  from  rates  upon  export  or  import 
goods  as  compared  with  the  rates  on  domestic  merchandise. 

In  Pittsburg  P.  G.  Co.  v.  P.  C.  C.  &  St.  L.  E.  Co.  (13  I.  C.  C.,  87)  held  that 
transportation  from  a  seaport  of  the  United  States  or  an  adjacent  foreign  coun- 
try to  an  interior  American  destination,  in  contemplation  of  a  through  move- 
ment of  freight  from  a  point  in  a  foreign  but  nonadjacent  country,  whether  upon 
a  joint  through  rate  or  upon  a  separately  established  or  proportional  inland  rate 
applicable  only  to  imports  moving  through,  is  not  a  "like  service"  to  the  trans- 
portation of  traffic  starting  at  such  domestic  port,  though  bound  for  the  same 
destination. 

In  Cosmopolitan  Shipping  Co.  v.  Hamburg- American  Packet  Co.  (13  I.  C.  C., 
266)  held  that  the  Commission  has  no  jurisdiction  as  to  shipments  moving  from 
ports  of  the  United  States  to  a  foreign  country  not  adjacent  when  such  ship- 
ments are  not  carried  by  rail,  or  by  rail  and  water,  from  an  inland  point  of 
origin  to  a  port  of  transshipment,  and  that  an  inland  movement  of  export  or  im- 
port traffic  is  a  condition  precedent  to  the  attaching  of  jurisdiction.  Affirmed  in 
Lykes  Steamship  Co.  v.  Commercial  Union  (13  I.  C.  C.,  310). 

In  N.  Y.  Board  of  T.  &  T.  v.  P.  E.  Co.  (4  I.  C.  C.,  447)  held  that  the  act 
to  regulate  commerce  provides  for  the  regulation  of  the  transportation  of  foreign 
merchandise  when  brought  from  a  foreign  port  of  shipment  to  a  port  of  entry 
of  the  United  States,  and  transported  from  such  port  of  entry  to  a  place  within 
the  United  States  upon  a  through  bill  of  lading,  or  when  transported  from  a  for- 
eign port  to  a  port  of  entry  of  a  foreign  country  adjacent  to  the  United  States, 
and  transported  from  such  port  of  entry  to  a  place  of  destination  within  the 
United  States  upon  a  through  bill  of  lading. 

It  would  appear  from  Eule  86  of  Tariff  Circular,  No.  15-A  (see  Appendix), 
that  the  jurisdiction  of  the  Commission  only  extends  to  export  or  import  traffic 
while  within  the  territorial  limits  of  the  United  States.  A  discrimination  between 
places  in  Canada  can  not  be  corrected  by  the  Commission.  (Cist  v.  M.  C.  E.  Co., 
10  I.-C.  C.,  217.) 

Intrastate  transportation  of  interstate  commerce: 
INSTANCE.— In  James  &  Mayer  Buggy  Co.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (4  I.  C.  C., 
744)  it  was  held  that  goods  shipped  from  Cincinnati,  Ohio,  to  points  in  Georgia 


40  JURISDICTION  OP  THE  COMMISSION 

are  interstate  traffic,  and  the  roads  forming  a  part  of  the  line  over  which  such 
goods  are  carried  to  destination  are  engaged  in  interstate  commerce,  and  subject 
to  the  act ;  and  where  two  or  more  roads  forming  a  continuous  connecting  line  be- 
tween points  in  different  States  bill  and  carry  interstate  traffic  through  to  cer- 
tain stations  on  the  delivering  road,  neither  one  road  nor  both  can  evade  the 
obligations  of  the  fourth  section  of  the  act  by  declaring  that  as  to  such  traffic 
the  terminal  road  is  a  local  carrier.  (See  C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.,  162 
U.  S.,  184). 

Commerce  between  a  State  and  the  District  of  Columbia : 
INSTANCE. — In  Willson  v.  E.  C.  E.  Co.  (7  I.  C.  C.,  83)  the  Commission  state 
that  all  internal  commerce  is  either  State  or  interstate;  commerce  carried  on 
between  the  State  of  Maryland  and  the  District  of  Columbia  is  not  subject  to 
regulation  by  Maryland  laws,  and  is  therefore  within  the  jurisdiction  of  Con- 
gress. (The  present  act  clearly  covers  transportation  to  and  from  and  within  the 
District  of  Columbia;  and  by  recent  act  the  Commission  has  been  given  certain 
duties  respecting  street  railways  in  the  District  of  Columbia,  see  Sec.  55,  post.) 

Jurisdiction  over  interstate  rates  is  not  ousted  by  discrimination 
due  to  State  rate : 

INSTANCE.— In  Eeliance  Textile  and  Dye  Works  v.  S.  E.  Co.  (13  I.  C.  C.,  48) 
held  that  where  a  discrimination  results  from  a  combination  of  a  State  and  an 
interstate  rate,  both  made  by  the  carrier,  the  jurisdiction  of  the  Commission  is 
not  ousted  by  the  fact  that  the  discrimination  is  produced  by  the  improper 
State  rate. 

Commerce  between  points  in  same  State  if  it  passes  through  another 
State : 

INSTANCE. — See  "Jurisdiction  over  carriers  handling  commerce  between  point 
in  same  State  if  it  passes  through  another  State."  (Sec.  38,  ante.) 

Commerce  wholly  within  a  State  is  not  subject  to  the  provisions  of 
the  act,  being  excepted  by  the  proviso  of  section  1 : 

That  the  provisions  of  this  act  shall  not  apply  to  transportation  of  passen- 
gers or  property,  or  to  the  receiving,  delivering,  storage,  or  handling  of  prop- 
erty wholly  within  one  State  and  not  shipped  to  or  from  a  foreign  country  from 
or  to  any  State  or  Territory  as  aforesaid. 

Of  course  any  attempt  to  include  such  commerce  would  be  contrary 
to  the  commerce  clause  of  the  Constitution,  and  beyond  the  power 
of  the  Congress. 

Prior  to  the  passage  of  the  act  of  June  29,  1906,  intraterritorial 
commerce  was  not  subject  to  the  act;  the  provisions  of  the  present 
act  apply  to  common  carriers  engaged  in  the  transportation  of  pas- 
sengers or  property,  in  the  manner  denned  in  the  first  section,  "from 
one  place  in  a  Territory  to  another  place  in  the  same  Territory." 
Interterritorial  shipments  were  subject  to  the  act  as  it  existed  prior 
to  the  last  amendment. 

Commodities  intended  for  transportation  to  another  State  are  not 
subject  to  the  jurisdiction  of  the  Commission : 

INSTANCE. — In  N.  J.  F.  Ex.  v.  C.  E.  Co.   (2  I.  C.  C.,  142)   it  was  held  that 


JURISDICTION  OP  THE  COMMISSION  41 

where  traffic  originates  in  the  State  of  New  Jersey  and  is  destined  to  the  State 
of  New  York,  but  the  delivery  by  the  carriers  to  the  consignees  is  made  at 
Jersey  City,  N.  J.,  and  the  rates  are  made,  not  to  New  York  but  to  Jersey  City, 
the  traffic  is  not  interstate  and  the  Commission  has  no  jurisdiction  over  the 
rates. 

In  some  instances  it  becomes ""  necessary  to  ascertain  at  what  rela- 
tive time,  under  the  act,  the  jurisdiction  of  the  Commission  attaches, 
and  when  it  terminates.  It  is  submitted  that  as  to  that  commerce  over 
which  the  Commission  may  exercise  jurisdiction  under  the  act,  the 
jurisdiction  attaches  at  the  time  the  commodities  are  delivered  to  the 
carrier  and  the  owner  ceases  to  exercise  dominion  over  them ;  and  that 
the  jurisdiction  remains  at  least  until  the  commodities  have  come  into 
the  possession,  actual  or  constructive,  of  the  consignee. 

Whenever  property  has  begun  to  move  as  an  article  of  commerce, 
from  a  point  in  one  State  to  a  point  in  another  it  then  becomes  inter- 
state commerce,87  and  if  conducted  in  the  manner  specified  in  the  act 
to  regulate  commerce  it  is  subject  to  its  provisions. 

The  movement  does  not  begin  until  the  articles  have  been  shipped  or 
started  in  their  transportation ; M  the  preparation  of  the  article  for 
transportation  is  not  sufficient ;  *  nor  the  intent  to  transport ; 70  it  must 
be  actually  delivered  to  the  carrier  for  transportation.71 

Commodities  cease  to  be  interstate  commerce  when  they  have  been 
so  acted  upon  that  they  have  been  incorporated  in  and  mixed  with 
other  property  of  the  State ; 72  some  decisions  hold  that  a  shipment  is 
incorporated  into  the  property  of  the  State  when  it  has  been  deliv- 
ered to  the  consignee ; 73  others  go  so  far  as  to  hold  that  it  is  required 
that  some  of  the  goods  shall  have  been  sold  after  they  have  arrived 
within  the  State  of  their  destination ;  whether  or  not  sale  of  the  goods 
is  a  requirement,  it  is  clear  that  a  sale  of  a  part  or  all  of  the  goods  in 

66  Particularly  cases  involving  demurrage,  track  storage,  terminal  charges,  and 
the  like,  as  sec.  6,  as  amended  by  the  act  of  June  29,  1906,  provides  that  the 
schedules   shall   ' '  state  separately   all   terminal   charges,    storage   charges,    icing 
charges,  and  all  other  charges  which  the  Commission  may  require,  all  privileges 
or  facilities  granted  or  allowed  and  any  rules  or  regulations  which  in  anywise 
change,  affect,  or  determine  any  part  or  the  aggregate  of  such  aforesaid  rates, 
fares,  and  charges,  or  the  value  of  the  service  rendered  to  the  passenger,  shipper, 
or  consignee." 

67  Oilman  v.  Philadelphia  (3  Wall.,  724),  The  Daniel  Ball  (10  Wall.,  557),  Coe 
v.  Errol,  (116  U.  S.,  517),  R.  R.  v.  Penn.   (136  U.  S.,  114),  R.  R.  v.  Penn.   (145 
U.  S.,  192),  U.  S.  v.  Knight  (156  U.  S.,  13). 

88  Coe  v.  Errol  (116  U.  S.,  517). 
"TJ.  S.  v.  Boyer  (85  Fed.,  425). 

70  Coe  v.  Errol  (116  U.  S.,  517). 

71  U.  S.  v.  Boyer  (85  Fed.,  425). 

"Gibbons  v.  Ogden  (9  Wheat,  1),  Brown  v.  Md.  (12  Wheat.,  419),  Welton  v. 
Mo.  (91  U.  S.,  275),  Howe  Mach.  Co.  v.  Gage  (100  U.  S.,  676),  Tiernan  v. 
Rinker  (102  U.  S.,  123),  Brown  v.  Houston  (114  U.  S.,  622),  Robbins  v.  Shelby 
County  Taxing  Dist.  (120  U.  S.,  489),  Emert  v.  Mo.  (156  U.  S.  292). 

73  Bowman  v.  Railroad  (125  U.  S.,  456),  Rhodes  v.  Iowa  (170  U.  S.,  412), 
Leisy  v.  Hardia  (135  U.  S.,  100),  Vance  v.  Vandercook  (170  U.  S.,  438). 


JURISDICTION  OP  THE  COMMISSION 

the  State  where  they  are  destined  and  delivered  destroys  their  charac- 
ter as  interstate  commerce. 

Sec.  40.  Questions  which  the  Commission  will  not  determine. — The 
Commission  early  held  that  it  would  not  express  opinions  on  abstract 
questions,  nor  on  questions  presented  by  ex  parte  statements  of  facts 
nor  on  questions  of  the  construction  of  the  statute  where  no  contro- 
versy was  pending  before  it  on  complaint  of  violation  of  the  law.7* 
So,  it  will  not  undertake  to  say  whether  or  not  it  is  proper  for  car- 
riers to  grant  free  transportation  to  those  who  are  said  to  be  proper 
subjects  of  charity ; re  but  it  has  recently  interpreted  by  administra- 
tive rulings  and  without  formal  complaint78  the  pass  provision.  If, 
during  a  proceeding  brought  to  test  the  reasonableness  of  rates,  the 
defendant  reduces  the  charge  to  the  amount  asked,  the  Commission 
will  not,  even  at  the  request  of  the  parties,  consider  and  pass  upon  the 
question,  whether  or  not  the  rates  complained  of  were  excessive,  be- 
cause the  question  would  be  purely  a  speculative  and  abstract  one.77 
Where  a  tariff  complained  of  had  long  since  been  abandoned  and  dis- 
continued, the  Commission  held  that  there  was  nothing  it  could  do 
in  the  direction  of  ordering  the  carriers  to  cease  and  desist  from  en- 
forcing it.71 

The  Commission,  as  an  administrative  body,  will  not  determine  the 
constitutionality  of  any  provision  of  the  law  but  presumes  it  to  be 
valid;  such  was  held  from  the  bench  in  the  matter  of  the  liability  of 
carriers  under  section  20  (so-called  Carmack  amendment). 

One  may  raise  constitutional  questions  before  the  Commission  but 
the  determination  of  them  must  be  had  in  the  courts. 

A  full  knowledge  of  facts  is  essential  to  a  decision : 

INSTANCE. — In  Howell  v.  N.  Y.  L.  E.  &  W.  B.  Co.  (2  I.  C.  C.,  272)  the  Com- 
mission stated  that  it  could  not  decide  the  question  of  reasonable  rates  without 
full  knowledge  of  all  the  facts  concerning  the  particular  traffic  in  question  and 
its  relation  to  the  other  traffic  of  the  carrier. 

Frequently  by  reason  of  a  want  of  evidence  in  support  of  alleged 
facts,  the  Commission  is  precluded  from  making  a  determination  of 
the  question : 

INSTANCE. — In  Be  Alleged  Unlawful  Charges,  etc.  (8  I.  C.  C.,  585)  where  in 
a  proceeding  instituted  upon  its  own  motion  there  had  been  allegations  of  un- 
reasonable rates  and  an  investigation  held,  but  the  evidence  was  uncertain  and 
inconclusive,  it  was  held  that  the  Commission  could  not  make  the  necessary 
comparisons  or  arrive  at  a  definite  conclusion. 

74  Be  Petition  of  Trad,  and  Trav.  Union  (1  I.  C.  C.,  8),  P.  Co.  v.  L.  N.  A.  & 
C.  B.  Co.  (3  L  C.  C.,  223). 

"Be  Disabled  Soldiers  and  Sailors  (1  I.  C.  C.,  28). 

7'Bules  63,  64,  65,  and  66;  Tariff  Circular  No.  15-A. 

"Bishop  v.  Duval,  receiver  (3  I.  C.  C.,  128),  P.  Co.  v.  L.  N.  A.  &  C.  E.  Co. 
(3  I.  C.  C.  223). 

71  Bawson  v.  N.  N.  &  M.  V.  Co.  (3  I.  C.  C.,  266). 


JURISDICTION  OF  THE  COMMISSION  43 

In  Eice  v.  L.  &  N.  E.  Co.  (1  I.  C.  C.,  503)  it  was  held  that  when  an  important 
question  is  raised  by  the  pleadings  and  the  determination  of  it  will  affect  others 
quite  as  much  as  the  defendant  and  the  parties  before  the  Commission  give  their 
attention  almost  exclusively  to  questions  other  than  the  one  mentioned  and  there 
is  no  attempt  to  supply  the  Commission  with  information  to  enable  the  question 
to  be  understandingly  determined  the  Commission  will  decline  to  decide  it, 
largely  upon  the  ground  that  it  affects  parties  not  before  the  Commission  and 
leave  the  complaint  to  raise  the  question  in  another  proceeding. 

Questions  may  not  be  determined  by  reason  of  lack  of  jurisdiction : 

INSTANCE.— In  CounciU  v.  W.  &  A.  E.  Co.  (1  I.  C.  C.,  339)  it  was  held  that 
the  Commission  would  not  go  into  the  question  of  money  damages  when  the 
claim  present  was  in  the  nature  of  an  action  of  trespass,  for  the  reason  that  the 
carrier  was  constitutionally  entitled  to  a  trial  by  jury  in  such  a  case.  And  where 
a  claim  for  pecuniary  damages  presents  a  ease  at  common  law  the  Commission 
refused  to  award  reparation.  (Heck  v.  E.  T.  V.  &  G.  E.  Co.  1  I.  C.  C.,  495.) 

In  K.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (2  I.  C.  C.,  162)  the  Commission 
declined  to  express  an  opinion  upon  the  question  of  rates  as  between  two  car- 
riers when  one  of  the  carriers  is  not  a  party  to  the  proceeding. 

In  Duncan  v.  A.  T.  &  S.  F.  E.  Co.  (6  I.  C.  C.,  85)  it  was  held  that  the  rem- 
edy of  one  for  injury  to  goods  shipped  resulting  from  delay,  deterioration,  loss, 
breakage,  rotting,  or  other  deterioration  or  damage  not  attributable  to  a  violation 
of  any  provision  of  the  act  to  regulate  commerce  is  by  appropriate  action  in  the 
courts  and  not  in  a  proceeding  before  the  Commission.  But  see  the  provisions 
of  section  20  respecting  initial  carrier  liability  and  the  remedy  given  by  sections 
8  and  9.  If  the  carrier  complies  with  the  provisions  of  section  20  and  loss, 
damage  and  injury  occur  to  the  property,  the  jurisdiction  of  the  Commission  to 
award  damages  therein  must  be  doubted;  but  if  the  carrier  fail  to  issue  such  a 
bill  of  lading  as  is  required  by  the  provisions  of  section  20  and  loss,  damage  and 
injury  result  the  Commission  may  have  jurisdiction  to  entertain  a  complaint  al- 
leging violation  of  the  act  and  to  award  reparation  to  the  complainant,  although 
no  such  case  has  been  brought. 

In  Commercial  Club  v.  C.  E.  I.  &  P.  E.  Co.  (6  I.  C.  C.,  647)  the  Commission 
held  that  matter  not  expressly  put  in  issue  by  the  pleadings  or  necessarily  in- 
volved in  the  issues  presented  can  not  be  authoritatively  determined  by  the  Com- 
mission and  no  opinion  would  be  expressed. 

In  E.  Com.  v.  L.  &  N.  E.  Co.  (10  I.  C.  C.,  173)  the  Commission  declined  to  en- 
force a  provision  of  the  Constitution  of  the  State  of  Kentucky  on  the  ground  that 
its  jurisdiction  did  not  extend  thereto  and  that  it  had  no  jurisdiction  other  than 
that  conferred  by  the  act  to  regulate  commerce. 

In  LaS.  &  B.  C.  E.  Co.  v.  C.  &  N.  W.  E.  Co.  (13  I.  C.  C.,  610)  it  was  held 
that  the  jurisdiction  of  the  Commission  does  not  extend  to  claims  ex  contractu, 
and  consequently  it  cannot  order  the  payment  of  money  for  services  performed, 
nor  for  a  debt  due  one  carrier  to  another  on  account  of  joint  rates  for  a  joint 
service;  affirmed  in  General  Electric  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (14  I.  C. 
C.,  237). 

In  Manning  v.  C.  &  A.  E.  Co.  (13  I.  C.  C.,  125)  held  that  the  Commission  would 
not  undertake  to  adjudicate  matters  between  a  railway  and  one  of  its  stock- 
holders, where  the  subject  of  controversy  was  of  no  public  importance. 

In  Cosmopolitan  Shipping  Co.  v.  Hamburg- American  Packet  Co.  (13  I.  C.  C., 
266)  held  that  the  Commission  has  no  jurisdiction  over  pooling  of  freight  by 
water  carriers. 


44  JURISDICTION  OP  THE  COMMISSION 

Sec  41.  Comity  between  the  Interstate  Commerce  Commission  and 
State  commissions. — It  not  infrequently  happens  that  rates  prescribed 
for  intrastate  traffic  by  a  State  commission  become  part  of  the  inter- 
state rate;  this  is  usually  the  case  where  a  rate-making  basis  is  at  a 
State  line,  for  the  interstate  rate  "makes"  to  the  basing  point  plus  the 
intrastate  rate  to  destination.  Where  such  an  interstate  rate  is  at- 
tacked on  the  ground  of  its  unreasonableness  the  Commission  will  not 
undertake  to  determine  as  to  the  reasonableness  of  the  portion  of  the 
rate  which  is  exacted  for  the  transportation  within  the  State,  but  will 
consider  the  reasonableness  of  the  rate  as  a  whole ;  it  will  nevertheless 
respect  the  rulings  and  the  rates  prescribed  by  the  State  commission 
in  so  far  as  is  inconsistent  with  the  administration  of  the  Federal  act 
to  regulate  commerce. 

Decisions  of  State  railway  commissions  are  entitled  to  consideration, 
but  they  are  not  conclusive  on  the  Interstate  Commerce  Commission : 

INSTANCE.— In  Marshall  Oil  Co.  v.  C.  &  N.  W.  E.  Co.  (14  I.  C.  C.,  210)  the 
Commission  said:  "The  decisions  of  the  several  State  railroad  commissions  are 
worthy  of  consideration,  but  we  are  not  justified  under  the  law  in  accepting  a 
comparison  of  lower  intrastate  rates  prescribed  by  the  State  authorities  with 
those  applying  on  interstate  traffic  as  conclusive  of  the  unreasonableness  of  the 
interstate  rates." 

In  Corn  Belt  Meat  Producers  Assn.  v.  C.  B.  &  Q.  R.  Co.  (14  I.  C.  C.,  376)  the 
Commission,  being  urged  to  determine  concerning  State  and  interstate  rates, 
said:  "There  are  many  reasons  why  State  and  interstate  rates  should  be  estab- 
lished in  harmony  with  one  another.  It  is  especially  unfortunate  that  the  sum 
of  the  State  locals  should  form  a  less  combination  than  the  through  interstate 
rates.  Railway  rates  depend  on  local  conditions  and  necessities  with  which  State 
commissions  are  often  better  acquainted  than  a  National  commission  possibly  can 
be.  When,  therefore,  we  are  asked  to  examine  the  reasonableness  of  an  inter- 
state rate  similar  rates  established  by  State  authority  in  that  territory  must 
have  great  influence,  especially  where  they  have  been  long  acquiesced  in  by  the 
carriers.  In  the  present  instance  the  Illinois  rates  have  been  in  effect  for  more 
than  a  quarter  of  a  century,  and  the  Iowa  rates  have  prevailed  for  an  almost 
equal  period,  until  slightly  reduced  last  year  by  the  Iowa  commission.  During 
all  this  time  the  carriers  have  accepted  these  rates.  It  is  impossible  not  to  be 
strongly  influenced  toward  the  view  that  such  rates  are  just  and  reasonable. 

' '  Still  these  State  rates  have  no  binding  force  upon  us.  They  are  standards  of 
comparison  of  greater  or  less  value,  according  as  they  appear  to  be  just  and 
reasonable.  This  Commission  has  several  times  refused  to  recognize  the  rea- 
sonableness of  State  rates,  even  when  those  rates  were  directly  in  issue,  holding 
that  a  through  interstate  rate  might  properly  be  higher  than  the  sum  of  the 
State  locals.  (Savannah  Bureau,  etc.  v.  C.  &  S.  R.  Co.,  7  I.  C.  C.,  601;  Artz  v. 
S.  A.  L.  R.  Co.,  11  I.  C.  C.,  458;  Brabham  v.  A.  C.  L.  R,  Co.,  11  I.  C.  C.,  464). 
The  defendants  insist  that  these  State  rates  are  unreasonably  low,  and  it  is  there- 
fore our  duty  to  examine  that  question  as  an  original  proposition. ' ' 

In  Leonard  v.  C.  &  A.  R.  Co.  (3  I.  C.  C.,  241)  where  it  was  shown  that  certain 
practices  had  received  the  sanction  of  State  laws  or  rulings  of  State  commissions 
and  it  was  urged  that  the  Commission  should  conform  thereto,  not  only  because 
the  State  action  must  be  held  prima  facie  just  and  right,  but  also  because  the 


45 

interstate  shipper  would  be  placed  at  a  disadvantage  relatively  to  the  intrastate 
shipper,  if  another  rule  be  applied,  the  Commission  said:  "The  Commission  will 
always  in  the  discharge  of  its  duties  pay  the  highest  deference  and  respect  to 
State  action.  It  appreciates  as  fully  as  any  one  possibly  can  the  importance  of 
all  laws  and  all  action  on  the  subject  of  railroads  and  their  work  being  har- 
monious. The  Commission  can  not  ignore  the  fact,  however,  that  the  people  of 
the  United  States  in  framing  their  Constitution  conferred  upon  the  Congress 
the  power  to  regulate  commerce  between  the  States.  The  power  was  not  re- 
stricted in  the  grant,  or  made  subject  to  any  condition  whatever;  it  is  there- 
fore full  and  complete,  and  any  State  action  that  would  limit  or  hamper  it  would 
obviously  be  an  encroachment  upon  the  domain  of  Federal  authority.  Neither 
of  the  States  named  would  make  any  question  of  this;  nor  would  their  public 
authorities  prescribe  any  rule  or  make  any  order  that  should  in  express  terms 
apply  to  interstate  commerce."  *  *  *  State  action  "is  entitled  to  respect, 
and  we  should  examine  it  in  any  case  in  the  expectation  of  finding  ourselves  in 
full  accord  with  it." 

In  Brabham  v.  A.  C.  L.  E.  Co.  (11  I.  C.  C.,  464)  it  was  held  that  the  rates 
fixed  by  the  State  commissions  of  South  Carolina  and  Georgia  are  presumptively 
reasonable,  but  such  presumption  is  not  conclusive  and  the  railroad  companies  are 
entitled  to  show  the  contrary  in  a  case  involving  the  rates  on  interstate  traffic. 

Sec.  42.  Comity  between  the  Commission  and  the  courts. — "Where  a 
controversy  is  properly  pending  in  a  court  having  jurisdiction  in  the 
premises  the  Commission  will  not  take  cognizance  of  the  case.  Thus 
where  a  complaint  alleging  unreasonable  rates  and  asking  reparation 
had  been  filed  with  the  Commission,  and  pending  decision  the  rates 
had  been  reduced,  and  claim  for  refund  had  been  made  to  the  court 
which  appointed  the  receiver  of  the  carrier  the  Commission  declined 
to  determine  what  was  a  reasonable  rate  for  the  reason  that  it  was 
an  abstract  question  and  also  because  the  matter  was  before  the 
court.79 

When  a  question  has  been  decided  by  the  Supreme  Court  the  Com- 
mission, of  course,  considers  itself  bound  thereby;  but  if  the  precise 
point  has  not  been  decided  in  the  opinion,  or  probably  if  the  point  be 
obiter,  the  Commission  can  not  be  bound  in  that  respect. 

Commission  is  not  bound  by  obiter  opinion  of  the  courts  : 

INSTANCE. — In  Gary  v.  E.  S.  E.  Co.  (7  I.  G.  C.,  286)  the  Commission  quoted 
from  two  Supreme  Court  decisions  as1  follows :  ' '  Under  the  interstate  commerce 
act  the  Commission  has  no  power  to  prescribe  the  tariff  of  rates  which  shall  con- 
trol in  the  future"  (I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.,  167  U.  S.,  479)  and,  "the 
reasonableness  of  the  rate  in  a  given  case  depends  on  the  facts,  and  the  function 
of  the  Commission  is  to  consider  the  facts  and  give  them  their  proper  weight. ' ' 
(C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.,  162  U.  S.,  184).  After  quoting  from  the 
above  cases  the  Commission  said:  "Under  the  law  so  construed,  the  Commission 
has  power  to  say  what  in  respect  to  the  past  was  unreasonable  and  unjust;  but 
as  to  rates  complained  of  as  unreasonable,  unjust  and  unlawful,  and  so  found 
to  be  in  the  case  under  consideration  the  Commission  can  make  no  provision  or 
order  for  their  reduction  which  the  courts  are  required  to  enforce  or  the  carriers 
are  obliged  to  obey." 

"Bishop  v.  Duval,  receiver  (3  I.  C.  C.,  128). 


46  JURISDICTION  OP  THE  COMMISSION 

Pendency  of  suit  in  court  will  not  prevent  an  order  of  the  Commis- 
sion— 

INSTANCE.— In  Keith  v.  K.  C.  B.  Co.  (1  I.  C.  C.,  189)  it  was  held  that  where 
suit  is  pending  in  Federal  courts  involving  to  some  extent  the  question  pre- 
sented by  the  petition  to  the  Commission  the  pendency  of  the  suit  will  not  be 
deemed  sufficient  reason  for  the  Commission  declining  to  make  an  order,  when 
it  ia  seen  that  the  judgment  of  the  court  when  rendered  will  not  necessarily 
cover  the  ground  of  the  petition  and  leave  was  given  either  party  to  apply  for 
a  modification  of  the  order  should  such  be  necessary  to  make  it  conform  to  the 
judgment  of  the  court  when  rendered. 

In  Bishop  v.  Duval,  receiver  (3  I.  C.  C.,  128)  it  was  held  that  where  the 
question  whether  rates  paid  ought  to  be  refunded  had  been  presented  to  a 
judicial  tribunal  where  it  is  pending  the  Commission  would  not  take  cognizance 
of  it.  But  the  fact  of  a  receivership  subsequent  to  a  complaint  should  not  inter- 
fere with  the  progress  of  the  proceeding  before  the  Commission.  (E.  Com.  v.  Clyde 
S.  S.  Co.,  5  I.  C.  C.,  324.) 

In  Loud  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  529)  it  was  held  that  the  question  whether 
property  of  a  carrier  in  the  hands  of  a  receiver  appointed  after  matters  com- 
plained of  before  the  Commission  are  alleged  to  have  occurred  is  subject  to  an 
order  of  reparation  by  the  Commission  is  one  to  be  presented  to  and  disposed  of 
by  the  courts. 

nor  prevent  rehearing  by  the  Commission — 

INSTANCE.— In  Southern  P.  &  G.  Co.  v.  L.  E.  &  W.  E.  Co.  (6  I.  C.  C.,  284) 
where  it  appears  that  the  discriminations  and  preferences  complained  of  in  a 
case  would  be  removed  through  compliance,  by  carriers  operating  in  the  same 
territory,  with  the  decision  and  order  of  the  Commission  in  other  cases,  and  that 
suits  are  pending  in  the  Federal  courts  for  the  enforcement  of  the  order  in  such 
other  cases,  the  proceedings  before  the  Commission  were  stayed  until  final  de- 
termination by  the  courts. 

but  a  proceeding  may  be  stayed  temporarily : 

INSTANCE. — In  Page  v.  D.  L.  &  W.  E.  Co.  (6  I.  C.  C.,  548)  the  Commission 
held  that  it  was  not  precluded  from  rehearing  a  particular  case  and  amending 
or  modifying  its  original  order  by  the  refusal  of  the  circuit  court  of  the  United 
States  to  enforce  the  original  order,  especially  when  the  reasons  assigned  for  the 
refusal  of  the  court  did  not  relate  to  the  principal  question  in  controversy  and 
are  consistent  with  an  approval  of  the  amended  or  modified  order. 

The  Commission  gives  such  weight  as  is  proper  to  the  decisions  of 
the  circuit  and  district  courts  in  matters  concerning  interstate  com- 
merce and  the  act ;  it  does  not,  however,  feel  itself  bound  by  such  de- 
cisions, except  in  a  case  where  the  opinion  of  the  Commission  is  re- 
viewed, for  the  reasons  that  the  facts  are  different  and  generally  in- 
volve a  different  territory  where  other  commercial  conditions  are 
present  than  in  the  case  decided  by  the  court.  Thus,  where  in  a  case 
involving  the  distribution  of  cars  to  coal  mines,  the  Commission  did 
not  consider  that  rules  laid  down  by  the  court  should  be  applied.80 

"Boyal  C.  &  C.  Co.  v.  S.  E.  Co.  (13  I.  C.  C.,  440). 


CHAPTER  III 

ADDITIONAL  POWERS  AND  DUTIES  OF  COMMISSION  UNDER  ACT 
TO  REGULATE  COMMERCE 


Sec.  43.  Additional  powers  and  duties  of  the  Commission. — The  orig- 
inal act  to  regulate  commerce *  gave  to  the  Commission  certain  powers 
and  imposed  upon  it  certain  duties  which  are  not  ordinarily  con- 
ferred upon  courts  or  judicial  tribunals.  These  powers  have  been 
considered  by  the  Congress  to  be  essential  to  assist  the  Commission  in 
the  performance  of  its  duties  and  to  secure  the  correction  of  the  evils 
of  railway  management.  The  original  act  contained  many  powers  and 
duties  which  are  administrative,  executive,  auxiliary,  regulative,  and 
supervisory,  and  additional  similar  powers  were  conferred  both  by  the 
Elkins'  law  (act  Feb.  19,  1903,  32  Stat.  L.,  847)  and  the  last  amend- 
ment to  the  interstate  commerce  act  (act  June  29,  1906,  34  Stat.  L., 
584). 

Sec.  44.  Executive  and  administrative  duties — 

DUTY  TO  EXECUTE  AND  ENFORCE  THE  ACT 

By  section  12  of  the  act  the  Commission  is  "authorized  and  re- 
quired to  execute  and  enforce  the  provisions  of  this  act."  The  Su- 
preme Court  in  I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (167  U.  S.,  479), 
referring  to  this  power,  said :  ' '  The  power  is  partly  judicial  and  part- 
ly executive  and  administrative."  It  is  the  manifest  duty  and  obli- 
gation of  the  Commission  to  enforce  reasonable  rates,2  or  other  af- 
firmative provisions  of  the  act  and  to  prevent  the  accomplishment  of 
the  negative  provisions.  It  is  not  too  much  to  say  that  this  duty  to 
execute  and  enforce  the  act  supplies  one  of  the  chief  reasons  for  the 
existence  of  the  Commission;  were  there  no  special  governmental 
agency  charged  with  executing  and  enforcing  the  provisions  of  the 
acts  to  regulate  commerce,  or  were  individuals  compelled  to  proceed  in 
the  courts  to  secure  rights  granted  by  the  act,  it  is  clear  that  the 

'Act  Feb.  4,  1887  (24  Stat.  L.,  379). 

'Perry  v.  F.  C.  and  P.  E.  Co.  (5  I.  C.  C.,  97),  Milk  Producers'  Assn.  v.  D.  L. 
and  W.  E.  Co.  (7  I.  C.  C.,  92),  re  Alleged  Excessive  Freight  Bates,  etc.  (4  L  C. 
C.,  116).  But  the  power  to  "execute  and  enforce"  does  not  by  implication  give 
the  power  to  make  rates  for  the  future  (I.  C.  C.  v.  C.  N.  O.  and  T.  P.  E.  Co., 
167  U.  S.,  479).  Nor  will  this  language  and  the  other  provisions  of  section 
12  authorize  the  Commission  to  institute  a  suit  in  the  courts  to  enjoin  discrimina- 
tions against  localities  (M.  P.  E.  Co.  v.  U.  S.,  189  U.  S.,  274). 


48  ADMINISTRATIVE  DUTIES  OP  COMMISSION 

correction  of  transportation  abuses  would  be  not  only  less  easily  accom- 
plished but  also  with  a  greater  expenditure  of  private  funds. 

MODIFICATION  OF  NOTICE  IN  CHANGE  OF  RATES 

The  Commission  is  given  authority,  in  its  discretion  and  for  good 
cause  shown,  to  permit  changes  of  rates  in  less  than  the  statutory 
period  of  thirty  days.1 

MEANS  FOR  ENFORCING  ACT 

The  Commission  is  given  authority  in  section  12  to  apply  to  district 
attorneys,  asking  that  they  institute  and  prosecute  in  appropriate 
courts  all  necessary  proceedings  for  the  enforcement  of  the  act  and 
for  the  punishment  of  the  violations  of  it.  The  authority  of  the 
Commission  thus  to  complain  of  the  violations  of  the  act  was  ques- 
tioned in  U.  S.  v.  M.  P.  R.  Co.  (65  Fed.,  903),  and  the  court,  in  sus- 
taining the  authority,  said: 

It  must  be  kept  in  view  steadily  that  the  object  of  the  creation  of  this  Com- 
mission was  not  merely  to  afford,  as  was  supposed,  a  ready  method  of  settling 
controversies  between  individual  shippers  and  the  common  carriers,  but  it  had 
a  far  wider  sweep  and  higher  scope  and  design,  which  was  by  affirmative  action 
on  the  part  of  the  Commission,  on  its  own  motion,  to  have  instituted  and  carried 
through  proceedings  for  the  correction  of  abuses  and  the  righting  of  wrongs, 
which  affected  the  public  commercial  interests;  and  this  even  without  the  in- 
tervention of  individual  litigants  at  all  (but  see  189  U.  S.,  274). 

The  Commission  is  also  given  authority  under  section  20  to  request 
the  Attorney-General  to  proceed  in  the  Federal  courts  by  mandamus, 
commanding  carriers  to  comply  with  the  provisions  of  the  statute.4 

PROHIBITING  VIOLATIONS  OF  ELKINS  LAW 

The  Elkins  law  (act  of  Feb.  19,  1903,  32  Stat.  L.,  847)  provides  in 
section  3,  that — 

Whenever  the  Interstate  Commerce  Commission  shall  have  reasonable  ground 
for  belief  that  any  common  carrier  is  engaged  in  the  carriage  of  passengers  or 
freight  traffic  between  given  points  at  less  than  the  published  rates  on  file,  or  is 
committing  any  discriminations  forbidden  by  law,  a  petition  may  be  presented 
alleging  such  facts  to  the  circuit  court  of  the  United  States  sitting  in  equity 
having  jurisdiction; 

and  the  court  is  authorized  to  enforce  an  observance  of  the  public 
tariffs  or  direct  and  require  the  discontinuance  of  the  discrimination 

3  The  Commission  has  exercised  this  discretion  frequently  and  has  prescribed 
a  general  rule  requiring  certain  changes.  (See  Tariff  Circular  No.  15-A,  items  54, 
55,  and  56,  Appendix). 

*  Jurisdiction  to  issue  writs  of  mandamus  to  compel  obedience  to  the  pro- 
visions of  the  act  respecting  filing  of  reports  was  not  conferred  by  the  original 
act  (U.  S.  ex  rel.  v.  L.  S.  &  M.  S.  K.  Co.,  197  U.  S.,  536).  This  jurisdiction  is 
now,  by  section  20,  specifically  conferred  upon  circuit  and  district  courts  of  the 
United  States. 


ADMINISTRATIVE  DUTIES  OF   COMMISSION  49 

by  proper  writs.    The  same  section  permits  the  Commission  to  ask  the 
Attorney-General  to  direct  the  district  attorneys  to  institute  and  pros- 
ecute such  proceedings.5 
Sec  45.  Supervisory  and  regulatory  powers — 

EEPORTS  FROM  CARRIERS 

The  Commission  is  given  authority  by  section  20  to  require  annual 
reports  from  carriers  subject  to  the  act,  and  from  owners  of  railroads 
engaged  in  interstate  commerce.  It  may  also  prescribe  the  manner  in 
which  these  reports  shall  be  made,  and  require  from  the  carriers  spe- 
cific answers  to  all  questions  upon  which  the  Commission  may  need  in- 
formation. The  statute  provides  specifically  for  the  contents  of  these 
reports.  (See  sec.  20,  par.  1,  Appendix.) 


It  is  provided  by  section  20  of  the  present  law  that  the  Commission 
shall  have  access  to  the  accounts,  records  and  memoranda  kept  by  the 
carriers  subject  .to  the  act ;  also  that  it  may  prescribe  a  uniform  sys- 
tem of  accounting,  the  form  of  accounts,  and  the  manner  of  keeping 
accounts.  It  may,  under  the  provisions  of  this  section,  employ  special 
agents  or  examiners,  and  by  an  order  these  employees  have  authority 
to  inspect  and  examine  any  and  all  accounts,  records,  and  memoranda 
kept  by  the  carriers. 

The  Commission  has  authority,  under  the  same  section,  to  require 
from  carriers  monthly  reports  and  special  reports,  the  latter  covering 
such  periods  of  time  as  the  Commission  may  specify. 

These  reports  contain  in  detail,  under  the  rules  provided  by  the 
Commission,  receipts  and  expenditures,  amount  of  capital,  outstand- 
ing bonds,  and  other  information  statistical  in  its  nature  from  which 
may  be  deduced  figures  valuable  in  ascertaining  the  cost  of  carriage 
upon  a  particular  road,  also  comparisons  between  various  roads. 

FORM  OF  SCHEDULES 

The  Commission,  in  section  6,  is  authorized  to  determine  the  form 
in  which  schedules  (passenger  and  freight  tariffs)  shall  be  made,  and 
it  is  given  authority  to  modify  the  requirements  of  the  law  as  to  the 
publishing,  posting,  and  filing  of  rates.  The  object  of  this  is  to  sim- 
plify tariffs  of  rates  and  thereby  make  them  more  certain  and  their 
evasion  more  difficult. 

5  Prior  to  the  passage  of  the  Elkins  law,  the  Federal  courts  had  no  jurisdiction 
to  enjoin  discriminations  (M.  P.  R.  Co.  v.  U.  S.,  189  U.  S.,  274).  The  language 
of  section  3  of  the  Elkins  law,  indicating  a  present  and  existing  violation  of  the 
law,  can  the  Commission  proceed  in  court  to  enjoin  a  rate  or  practice  not  in  force 
and  effect? 


50  ADMINISTRATIVE  DUTIES  OP  COMMISSION 

SAFETY  OP  SWITCH  CONNECTIONS 

The  Commission  is  required,  upon  complaint  of  a  shipper  that  the 
carrier  has  refused  to  maintain  the  switch  connection,  to  hear  and  in- 
vestigate the  petition  and  to  "determine  as  to  the  safety  and  prac- 
ticability thereof. ' '  ( Sec.  1. ) 

Sec.  46.  Auxiliary  powers  of  the  Commission. — 

ATT)  OP  COURT  IN  REQUIRING  ATTENDANCE  OP  WITNESSES,  ETC. 

The  Commission  or  any  party  to  the  proceeding  before  the  Com- 
mission, when  there  has  been  a  disobedience  to  a  subpoena,  may  invoke 
the  aid  of  any  court  of  the  United  States  to  require  the  attendance 
and  testimony  of  witnesses  and  the  production  of  documentary  evi- 
dence (sec.  12).  This  provision  was  held  constitutional  in  I.  C.  C.  v. 
Brimson  (154  U.  S.,  447).'  There  can  be  no  punishment  for  contempt 
before  the  Commission,  therefore  the  Commission  is  given  authority 
to  invoke  the  aid  of  a  court  to  compel  the  attendance  of  witnesses  and 
the  giving  of  testimony. 

AUTHORITY  TO  INQUIRE  INTO  MANAGEMENT  OP  CARRIERS 

The  statute  gives  the  Commission  "authority  to  inquire  into  the 
management  of  the  business  of  all  common  carriers  subject  to  the 
provisions"  of  the  act  (sec.  12).  This  language  has  been  broadly 
construed  both  by  the  Commission  and  by  the  courts T  and  has  been 
the  authority  for  general  investigations  by  the  Commission  on  its  own 
motion. 

EMPLOYMENT  OP  SPECIAL  COUNSEL 

The  Commission  may,  with  the  consent  of  the  Attorney-General  em- 
ploy special  counsel  for  the  purpose  of  conducting  any  proceeding 
under  the  act  (sec.  16). 

SPECIAL  AGENTS  OR  EXAMINERS 

The  Commission  is  authorized  to  employ  special  agents  or  examiners 
who  shall  have  power  to  administer  oaths,  examine  witnesses,  and  re- 
ceive evidence  (sec.  20). 

EMPLOYEES 

The  Commission  is  authorized  to  hire  employees  and  fix  their  com- 
pensation (sec.  16),  but  in  its  annual  report  to  Congress  the  names  and 
compensation  of  employees  shall  be  given  (sec.  21). 

•Be  Alleged  Excessive  Freight  Bates,  etc.  (4  I.  C.  C.,  116),  the  Commission 
said:  "The  Commission  not  being  a  court,  an  attorney  at  law  can  have  im- 
munity from  the  legal  penalties  of  contempt,  and  accuse  it  of  misstating  and  per- 
verting testimony." 

TI  ,C,  C,  v.  D.  G.  H.  &  M.  B.  Co.  (57  Fed.,  1005), 


CHAPTER  IV 

DUTIES  AND   POWEES   OF   COMMISSION  UNDER   ACTS   OTHER 
THAN  ACTS  TO  REGULATE  COMMERCE 


Sec.  47.  Authority  and  duties  of  the  Commission  under  acts  other  than 
the  interstate  commerce  acts. — The  Commission  since  its  organization 
has  served  as  a  convenient  repository  for  the  exercise  of  Federal  au- 
thority over  carriers  engaged  in  interstate  commerce.  The  several  acts 
conferring  authority  are  not  amendatory  of  or  supplementary  to  the 
act  to  regulate  commerce  but  stand  independently.  "Wherever  the 
Congress  has  desired  to  exercise  a  supervision  and  control  over  car- 
riers engaged  in  interstate  commerce,  particularly  carriers  by  rail,  it 
has  almost  uniformly  conferred  upon  the  Commission  the  power  to  in- 
vestigate, oversee,  and  regulate  the  manner  of  operation  and  other  de- 
tails. 

The  acts  by  which  various  duties  and  powers  have  been  given  to  the 
Commission  are : 1 

(a)  An  act  supplementary  to  the  act  of  July  1,  1862,  entitled  "An  act  to  aid 
in  the  construction  of  a  railroad  and  telegraph  line  from  the  Missouri  Biver  to 
the  Pacific  Ocean,  and  to  secure  to  the  Government  the  use  of  the  same  for 
postal,  military,  and  other  purposes,"  and  also  of  the  act  of  July  2,  1864,  and 
other  acts  amendatory  of  said  first-named  act,  approved  August  7,  1888  (25 
Stat.  L.,  382;  1  Supp.  E.  S.,  602). 

(&)  The  act  of  Mar.  3,  1903,  to  promote  the  safety  of  employees  and  trav- 
elers upon  railroads  by  compelling  common  carriers  engaged  in  interstate  com- 
merce to  equip  their  cars  with  automatic  couplers  and  continuous  brakes  and 
their  locomotives  with  driving-wheel  brakes,  and  for  other  purposes,  amending 
the  act  of  March  2,  1893,  upon  the  same  subject  and  which  had  been  changed 
by  an  act  of  April  1,  1896  (27  Stat.  L.,  531;  2  Supp.  E.  S.,  102,  as  amended 
by  act  approved  Apr.  1,  1896,  29  Stat.  L.,  85;  2  Supp.  E.  S.  455;  32  Stat.  L., 
943,  444). 

(c)  Directing  the  Interstate  Commerce  Commission  to  investigate  and  report 
on   block-signal   systems   and   appliances   for  the   automatic  control   of   railway 
trains,  approved  June  30,  1906  (34  Stat.  L.,  838). 

(d)  To  grant  the  right  of  way  through  the  Oklahoma  Territory  and  the  In- 
dian Territory  to  the  Enid  and  Anadarko  Eailway  Company,  and  for  other  pur- 
poses, approved  February  28,  1902  (32  Stat.  L.,  43). 

(e)  An  act  requiring  common  carriers  engaged  in  interstate  commerce  to  make 

1  For  the  powers  and  duties  conferred  by  each  act  see  sections  following. 


52  DUTIES  UNDER  PARTICULAR  ACTS 

full  reports  of  all  accidents  to  the  Interstate  Commerce  Commission,  approved 
March  3,  1901  (31  Stat.  L.,  1446). 

(f)  Joint  resolution  instructing  the  Interstate  Commerce  Commission  to  make 
examinations  into  the  subject  of  railroad  discriminations  and  monopolies  in  coal 
and  oil,  and  report  on  the  same  from  time  to  time,  approved  March  7,  1906  (34 
Stat.  L.,  823). 

(g)  An  act  to  promote  the  safety  of  employees  and  travelers  upon  railroads  by 
limiting  the  hours  of  service  of  employees  thereon,  approved  March  4,  1907   (34 
Stat.  L.,  1415). 

(7i)  An  act  authorizing  certain  extensions  to  be  made  of  the  lines  of  the  Ana- 
costia  and  Potomac  River  Railroad  Company,  the  Washington  Railway  and  Elec- 
tric Company,  the  City  and  Suburban  Railway  of  Washington,  and  the  Capital 
Traction  Company,  in  the  District  of  Columbia,  and  for  other  purposes,  ap- 
proved May  23,  1908  (35  Stat.  L.,  246). 

(i)  An  act  to  promote  the  safety  of  employees  on  railroads,  approved  May  30, 
1908  (35  Stat.  L.,  476). 

(j)  An  act  to  promote  the  safe  transportation  in  interstate  commerce  of  ex- 
plosives and  other  dangerous  articles,  and  to  provide  penalties  for  its  violation, 
approved  May  30,  1908  (35  Stat.  L.,  554). 

Sec.  48.  Authority  and  duty  of  Commission  under  act  of  August  7, 
1888  (25  Stat.  L.,  382;  1  Supp.  R.  S.,  602).— This  act  is  supplementary 
to  the  act  to  aid  in  the  construction  of  a  railroad  and  telegraph  line 
from  the  Missouri  Eiver  to  the  Pacific  Ocean  (acts  of  July  1,  1862,  and 
July  2,  1864).  By  section  3  of  the  act  of  1888  it  is  provided  that  if 
any  railroad  or  telegraph  company  to  which  has  been  granted  a  sub- 
sidy in  lands  or  bonds  or  loan  of  credit  for  their  construction  shall 
refuse  or  fail  to  maintain  a  railroad  or  telegraph  line  and  to  operate 
the  same  as  provided  by  law  for  the  use  of  the  Government  or  the 
public  without  discrimination,  or  shall  fail  or  refuse  to  make  and  con- 
tinue to  arrange  for  the  interchange  of  business  with  connecting  com- 
panies, then  any  persons,  company,  corporation,  or  connecting  tele- 
graph company  may  apply  for  relief  to  the  Interstate  Commerce 
Commission ;  and  it  is  made  the  duty  of  the  Commission,  under  such 
rules  and  regulations  as  it  may  prescribe,  to  determine  and  order  what 
arrangement  is  proper  to  be  made  in  the  particular  case,  and  the 
railroad  or  telegraph  company  shall  abide  by  and  perform  the  order. 
Notice  of  the  determination  and  order  is  to  be  given  to  the  parties 
concerned  and  the  Commission  is  given  power  to  enforce  obedience 
to  its  order  by  writ  of  mandamus  in  the  United  States  courts  on  the 
relation  of  any  of  the  Commissioners.  Authority  is  given  to  the  Com- 
mission to  institute  an  inquiry  upon  their  own  motion  in  the  same 
manner  and  to  the  same  effect  as  though  complaint  had  been  made. 

Each  of  the  railroad  and  telegraph  companies  subject  to  this  act  of 
1888  and  the  original  acts  is  required,  by  section  6,  to  report  to  the 
Interstate  Commerce  Commission  with  reasonable  fullness  and  cer- 
tainty "the  nature,  extent,  value,  and  condition  of  the  telegraph 
lines  and  property  then  belonging  to  it,  the  gross  earnings,  and  all 


DUTIES   UNDER  PARTICULAR   ACTS  53 

expenses  of  maintenance,  use,  and  operation  thereof,  and  its  relation 
and  business  with  all  connecting  telegraph  companies  during  the 
preceding  year. ' '  The  Commission  shall  prescribe  the  time  when  and 
the  manner  in  which  these  reports  shall  be  filed. 

Section  6  also  provides  that  it  shall  be  the  duty  of  the  railroad  and 
telegraph  company,  subject  to  the  act ' '  to  file  with  the  Interstate  Com- 
merce Commission  copies  of  all  contracts  and  agreements  of  every  de- 
scription existing  between  it  and  every  other  person  or  corporation 
whatsoever  in  reference  to  the  ownership,  possession,  maintenance, 
control,  use,  or  operation  of  any  telegraph  lines,  or  property  over  or 
upon  its  rights  of  way,  and  also  a  report  describing  with  sufficient 
certainty  the  telegraph  lines  and  property  belonging  to  i£,  and  the 
manner  in  which  the  same  are  being  then  used  and  operated  by  it, 
and  the  telegraph  lines  and  property  upon  its  right  of  way  in  which 
any  other  person  or  corporation  claims  to  have  a  title  or  interest,  and 
setting  forth  the  grounds  of  such  claim,  and  the  manner  in  which  the 
same  are  being  then  used  and  operated." 

Pursuant  to  this  act  the  Commission,  by  circular  letter  of  August 
26,  1888,  urged  upon  the  carriers  subject  to  the  act  compliance  with 
its  provisions  respecting  the  filing  of  contracts  and  agreements  with 
the  Commission  and  also  reporting  to  what  extent  and  in  what  manner 
the  provisions  of  section  1  of  the  act  [relating  to  the  construction, 
maintenance,  and  operation  of  telegraph  lines  on  subsidized  rail- 
roads] had  been  complied  with.2 

Many  of  the  carriers  subject  to  the  act  neglected  to  make  reports  and 
the  Commission  informed  the  Attorney- General,  in  accordance  with 
the  act,  that  he  might  proceed  to  deal  with  the  cases  as  he  should 
deem  necessary.3  Subsequently,  suit  was  brought  by  the  United  States 
against  the  Union  Pacific  Railway  Company  and  Western  Union  Tele- 
graph Company  under  this  act  to  compel  compliance  with  its  pro- 
visions, and  for  the  annulment  of  certain  agreements  between  the  two 
companies.  Under  decree  of  the  United  States  Circuit  Court  for  the 
District  of  Nebraska  the  agreements  between  the  railroad  and  tele- 
graph company  were  annuled  and  held  for  naught,  and  the  telegraph 
company  was  directed  to  vacate  all  the  offices  of  the  railway  company, 
but  it  was  provided  that  the  decree  should  not  be  construed  as  pre- 
venting the  railway  company  from  leasing  its  lines  to  the  telegraph 
company  (50  Fed.,  28).  Upon  appeal,  the  Circuit  Court  of  Appeals 
reversed  the  decree  in  part  (59  Fed.,  813).  The  decision  of  the  Cir- 
cuit Court  of  Appeals  was  reversed  and  the  decree  of  the  circuit 
court  affirmed  by  the  Supreme  Court  (160  U.  S.,  1).* 

"2d  Ann.  Kept.,  187. 

3  4th  Ann.  Kept.,  49 ;  5th  Ann.  Kept.,  9 ;  6th  Ann.  Kept.,  67 ;  7th  Ann.  Kept., 
77;  8th  Ann.  Kept.,  77. 

4  See  also  U.  S.  v.  N.  P.  R.  Co.  (120  Fed.,  546). 


54  DUTIES  UNDER  PARTICULAR  ACTS 

Under  the  authority  conferred  upon  the  Commission  by  this  act  one 
formal  case  has  been  filed  with  the  Commission  (I.  C.  C.  Docket, 
602),  which  was  subsequently  dismissed  on  motion  of  counsel  for 
plaintiff.1 

Sec.  49.  Authority  of  Commission  under  safety-appliance  acts.8 — The 
original  act  provided  in  section  4  that  after  July  1,  1895,  it  should 
be  unlawful  for  any  railroad  company  to  use  any  car  in  interstate 
commerce  which  is  not  provided  with  secure  grab  irons  or  handholds 
in  the  ends  and  sides  of  each  car  for  greater  security  to  men  in  coup- 
ling and  uncoupling  cars;  and  this  provision  was  to  continue  until 
otherwise  ordered  by  the  Commission.  The  act  also  provided  in  section 
5  that  upon  recommendation  of  the  American  Railway  Association  the 
Commission  might  give  notice  by  such  means  as  it  deemed  proper  to 
all  carriers  engaged  in  interstate  commerce  of  the  standard  height  of 
draw-bars  for  freight  cars.  The  act  prohibited  (sec.  6),  under  a  pen- 
alty of  $100  for  each  violation,  a  carrier  from  using  any  locomotive 
other  than  as  prescribed  by  the  act  and  it  is  made  the  duty  of  the 
Interstate  Commerce  Commission  to  lodge  with  proper  district  attor- 
neys information  concerning  violations  of  the  act  which  may  come  to 
its  knowledge.  Power  is  also  given  in  section  7  to  the  Interstate  Com- 
merce Commission  to  extend  the  period  within  which  the  carriers  shall 
comply  with  the  provisions  of  the  law. 

The  amending  act  of  March  2,  1903,  in  section  2,  gave  the  Commis- 
sion power  after  full  hearing  to  increase  the  minimum  percentage  of 
cars  required  to  be  operated  with  power  or  train  brakes. 

The  Commission  is  required  by  the  sundry  civil  act  of  1906  "to  ex- 
amine all  mail  cars  used  on  any  railroad  in  the  United  States ' '  and  to 
report  on  their  construction,  adaptability,  design,  and  condition. 

The  safety  appliance  acts  have  been  construed  by  the  courts  in  the  following 
cases:  C.  M.  &  St.  P.  R.  Co.  v.  Voelker  (129  Fed.,  522),  Crawford  v.  N.  Y.  C.  & 
H.  R.  Co.  (10  Am.  Neg.  Rep.,  166),  Johnson  v.  S.  P.  Co.  (117  Fed.,  462),  Johnson 
v.  S.  P.  Co.  (196  U.  S.,  1),  P.  &  R.  Co.  v.  Winkler  (4  Pennewill  (Del.),  387), 
Schlemmer  v.  B.  P.  &  R.  Co.  (205  U.  S.,  1),  U.  S.  v.  A.  T.  &  S.  F.  R.  (150  Fed., 
442),  U.  S.  v.  C.  M.  &  St.  P.  R.  Co.  (149  Fed.,  486),  U.  S.  v.  C.  P.  &  St.  L. 
R.  Co.  (143  Fed.,  353),  U.  S.  v.  E.  P.  &  S.  W.  Co.  (District  Court,  Arizona,  Jan. 
3,  1907),  U.  S.  v.  E.  P.  &  S.  W.  R.  Co.  (Western  District  of  Texas,  Apr.  8,  1907), 
U.  S.  v.  G.  N.  R.  Co.  (145  Fed.,  438),  U.  S.  v.  G.  N.  R.  Co.  (150  Fed.,  229), 
U.  S.  v.  Geddes  (District  Court,  Southern  District  of  Ohio,  Aug.  13,  1903),  U. 
S.  v.  Geddes  (131  Fed.,  452),  U.  S.  v.  I.  H.  R,  Co.  (Northern  District  of  Illinois, 
Nov.  20,  1906),  U.  S.  v.  N.  P.  T.  Co.  (144  Fed.,  861),  U.  S.  v.  P.  C.  C.  &  St. 
L.  R.  Co.  (143  Fed.,  360),  U.  S.  v.  S.  P.  Co.  (District  of  Oregon,  Apr.  1,  1907), 
U.  S.  v.  S.  R.  Co.  (135  Fed.,  122),  Voelker  v.  C.  M.  &  St.  P.  Co.  (116  Fed.,  867), 

5 15th  Ann.  Rept.,  19;  16th  Ann.  Rept.,  21. 

•Act  of  Mar.  2,  1893  (27  Stat.  L.,  531;  2  Supp.  R.  S.,  102),  as  amended  by 
act  of  Apr.  1,  1896  (29  Stat.  L.,  85;  2  Supp.  R.  S.,  455),  and  as  amended  by 
act  of  Mar.  2,  1903  (32  Stat.  L.,  943),  and  act  of  June  28,  1902  (32  Stat.  L., 
444). 


DUTIES   UNDER  PARTICULAR   ACTS  55 

Winkler  v.  P.  &  E.  E.  Co.  (53  AtL,  90),  TI.  S.  v.  Belt  E.  Co.  (161  Fed.,  — ), 
U.  S.  v.  C.  &  N.  W.  E.  Co.  (District  of  Colorado,  Nov.  25,  1907),  M.  P.  E.  Co. 
v.  Brinkmeier  (Supreme  Court  of  Kansas,  Apr.  6,  1907),  Missouri  ex  rel.  v.  M. 
P.  E.  Co.  (Supreme  Court  of  Missouri,  June  6,  1908),  TJ.  S.  v.  St.  L.  I.  M.  & 
S.  E.  Co.  (District  Court,  Western  District  of  Tennessee,  June  11,  1907),  U.  S. 
v.  I.  C.  E.  Co.,  2  cases  (District  Court  Western  District  of  Kentucky,  Nov.  1, 
1907),  U.  S.  v.  W.  E.  Co.  (District  Court,  Eastern  District  of  Illinois,  Nov.  19, 
1907),  TJ.  S.  v.  C.  E.  I.  &  P.  E.  Co.  (District  Court,  Western  District  of  Missouri, 
Feb.  21,  1908),  U.  S.  v.  Union  Stock  Yards  of  Omaha  (District  Court  of 
Nebraska,  Feb.  21,  1908),  U.  S.  v.  L.  V.  E.  Co.  (District  Court,  Eastern  District 
of  Pennsylvania,  Mar.  17,  1908),  U.  S.  v.  P.  &  E.  E.  Co.  (District  Court,  Eastern 
District  of  Pennsylvania,  Mar.  17,  1908),  U.  S.  v.  P.  E.  Co.  (District  Court, 
Eastern  District  of  Pennsylvania,  Mar.  18,  1908),  U.  S.  v.  C.  G.  W.  E.  Co.  (Dis- 
trict Court,  Northern  District  of  Iowa,  May  6,  1908),  U.  S.  v.  W.  &  L.  E.  E.  Co. 
(District  Court,  Northern  District  of  Ohio,  June  16,  1908),  U.  S.  v.  P.  C.  E.  Co. 
(District  Court  for  Southern  District  of  California,  June  13,  1908),  U.  S.  v. 
A.  T.  &  S.  F.  E.  Co.  (District  Court  for  the  Southern  District  of  California, 
June  6,  1908),  U.  S.  v.  T.  E.  Assn.  of  St.  L.  (District  Court  for  the  Eastern 
District  of  Missouri,  June  3,  1908),  U.  S.  v.  O.  S.  L.  E.  Co.  (District  Court  for 
the  District  of  Idaho,  June  4,  1908),  TJ.  S.  v.  C.  H.  &  D.  E.  Co.  (District  Court, 
Northern  District  of  Ohio,  June  24,  1908),  U.  S.  v.  A.  T.  &  S.  F.  E.  Co.  (Dis- 
trict Court,  Fourth  District  of  Arizona,  July  17,  1908),  U.  S.  v.  D.  &  E.  G. 
Co.  (Circuit  Court  of  Appeals  for  Eighth  Circuit,  Aug.  22,  1908),  U.  S.  v.  A. 
T.  &  S.  F.  E.  Co.  (Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  August  22, 
1908). 

Under  the  safety  appliance  acts  the  Commission  has  provided  the 
percentage  of  cars  which  must  be  equipped  with  air  brakes,  height  of 
grab  irons,  and  made  rules  and  regulations  for  the  equipment  of  cars 
in  interstate  commerce.  A  considerable  force  of  inspectors  is  engaged 
in  examining  trains  in  interstate  commerce  and  reporting  the  number 
of  defective  cars.  Several  suits  have  been  brought  against  carriers 
for  violations  of  the  provisions  of  the  act.7 

Sec.  50.  Authority  of  Commission  to  investigate  and  report  on  block 
signal  systems. — Under  joint  resolution  of  June  30,  1906  (34  Stat. 
L.,  838)  the  Commission  is  authorized  and  directed  to  investigate  and 
report  on  the  use  and  necessity  for  block-signal  systems  and  appliances 

7  7th  Ann.  Eept.,  p.  265;  8th  Ann.  Eept.,  p.  75;  9th  Ann.  Eept.,  p.  91;  10th 
Ann.  Eept.,  p.  93;  llth  Ann.  Eept.,  p.  127-131;  12th  Ann.  Eept.,  p.  86-90;  13th 
Ann.  Eept.,  p.  50-54;  14th  Ann.  Eept.,  p.  76-85;  15th  Ann.  Eept.,  p.  62-78;  16th 
Ann.  Eept.,  p.  57-62;  17th  Ann.  Eept.,  p.  84-96;  18th  Ann.  Eept.,  p.  90-97;  19th 
Ann.  Eept.,  p.  71-76;  20th  Ann.  Eept.,  p.  70-72;  21st  Ann.  Eept.,  p.  132-139.  In 
these  several  reports  the  Commission  reviews  its  authority  respecting  safety  ap- 
pliances and  the  decisions  of  the  courts  under  the  statute.  Ee  Safety  of  Em- 
ployees and  Travellers,  etc.  (6  I.  C.  C.,  332),  Evans  v.  U.  P.  E.  Co.  (6  I.  C.  C., 
520),  re  Application  of  C.  &  A.  E.  Co.  et  al,  for  Extension  of  Time  for  Com- 
pliance with  Safety  Appliance  Act  (8  I.  C.  C.,  643),  re  Application  of  Certain 
Carriers,  etc.  (8  I.  C.  C.,  662;  9  I.  C.  C.,  522),  re  Proposed  Increase  in  Minimum 
Percentage  of  Cars,  etc.  (11  L  C.  C.,  429).  In  the  19th  Ann.  Eept.  (p.  71),  the 
Commission  said:  ''Within  the  past  year  a  decided  improvement  has  taken  place 
in  the  condition  of  safety  appliances  on  all  railroads  subject  to  the  provisions 
of  the  statute,  and  at  no  time  since  the  safety-appliance  law  became  effective 
have  the  results  of  its  operation  been  so  satisfactory  as  at  present." 


56  DUTIES  UNDER  PARTICULAR   ACTS 

for  the  automatic  control  of  railway  trains.  In  transmitting  its  report 
to  the  Congress  the  Commission  is  to  recommend  such  legislation  as  it 
deems  advisable.  Under  this  act  the  Commission  is  given  power  to 
issue  subpoenas,  administer  oaths,  examine  witnesses,  require  the  pro- 
duction of  books  and  papers,  and  receive  depositions  taken  before  any 
proper  officer. 

Under  this  resolution  the  Commission  conducted  an  investigation 
and  submitted  a  report  to  the  Congress  on  February  23,  1907.  The 
Commission  recommended  supplemental  legislation  for  the  purpose  of 
supervising  and  conducting  experimental  tests  of  safety  devices  and 
an  appropriation  of  $50,000  was  made  for  the  purpose. 

After  a  conference  with  officials  in  charge  of  operating  departments 
of  railways  a  board  was  appointed  to  continue  the  investigation ;  this 
board  has  considered  a  number  of  devices  and  systems  but  its  report 
has  not,  as  yet,  been  published  (21st  Ann.  Kept.,  122). 

Sec.  51.  Authority  of  Commission  to  approve  certain  interlocking  or 
automatic  signals  at  crossings. — The  act  (32  Stat.  L.,  43)  to  grant  a 
right  of  way  through  Oklahoma  Territory  and  Indian  Territory  to 
the  Enid  and  Anadarko  Railway  Company  provided  in  section  18  for 
the  approval  by  the  Commission  of  interlocking  or  automatic  signals 
at  crossings  at  common  grade  and  to  grant  permission  for  the  use 
thereof  if  the  system  of  works  and  fixtures  are,  in  the  opinion  of  the 
Commission,  sufficient  and  proper. 

Nothing  appears  to  have  been  done  by  the  Commission  under  this 
act,  the  authority  therein  conferred  having  been  absorbed  by  the  reso- 
lutions concerning  block  signal  systems.  (See  sec.  50.) 

Sec.  52.  Authority  of  Commission  respecting  accident  reports  of  car- 
riers engaged  in  interstate  commerce  (31  Stat.  L.,  1446). — All  rail- 
roads engaged  in  interstate  commerce  are  required  to  report  to  the 
Commission,  monthly,  accidents  (sec.  1)  ;  the  report  stating  the  nature 
and  cause  of  the  accidents  and  the  circumstances  connected  there- 
with; but  these  reports  are  not  to  be  used  in  evidence  against  the 
carrier  (sec.  3).  The  form  of  report  and  the  method  is  to  be  pre- 
scribed by  the  Interstate  Commerce  Commission  (sec.  4). 

Under  this  statute  the  Commission  has  held  hearings,  provided 
forms  for  reports  of  accidents,  and  taken  effective  measures  to  insure 
that  none  of  the  information  contained  in  the  reports  shall  be  di- 
vulged, except  through  the  formal  reports  of  the  Commission.8 

"The  primary  object  of  the  statute,"  said  the  Commission  in  the  15th  Annual 
Report  (p.  79)  "is,  obviously,  to  promote  the  safety  of  passengers  and  of  rail- 
road employees;  and  this  object  is  to  be  accomplished,  so  far  as  these  records 
can  accomplish  it,  by  making  the  most  instructive  exhibit  possible  of  those  acci- 

8 15th  Ann.  Kept.,  pp.  78,  293;  16th  Ann.  Kept.,  p.  162;  17th  Ann.  Kept.,  pp. 
96,  107;  18th  Ann.  Rept.,  pp.  97-105;  19th  Ann.  Rept.,  pp.  13,  14;  20th  Ann. 
Rept.,  pp.  68-70;  21st  Ann.  Rept.,  pp.  127,  155-156. 


DUTIES   UNDER  PARTICULAR   ACTS  57 

dents  which  are  preventable.  Experience  has  shown  that  some  classes  of  acci- 
dents, including  many  personal  casualties  in  which  the  person  injured  is  himself 
chiefly  at  fault,  occur  in  such  uniform  percentages,  year  after  year,  in  proportion 
to  the  total  number  of  persons  employed  (or,  in  the  case  of  passengers,  to  the 
total  number  transported),  that  they  may  be  looked  upon  as  unavoidable." 

Sec.  53.  Authority  of  Commission  under  joint  resolution  to  make  ex- 
aminations into  railroad  discriminations  and  monopolies  in  coal  and  oil 
(34  Stat.  L.,  823)." — The  Commission  under  joint  resolution  of  March 
7,  1906,  is  instructed  to  examine  into  the  subject  of  railroad  discrim- 
inations in  coal  and  oil  and  to  report  concerning : 

(a)  Inter  corporate  stock  ownership;  (6)  ownership  of  officers  of  carriers 
in  coal  and  oil  lands  and  coal  and  oil  traffic;  (c)  whether  there  is  any  com- 
bination or  trust  in  restraint  of  trade  or  monopoly  in  coal  and  oil  traffic;  (d) 
the  system  of  car  distribution  in  effect  on  railway  lines  engaged  in  the  inter- 
state transportation  of  coal  and  oil;  (e)  and  any  facts  or  conclusions  which 
the  Commission  may  think  pertinent  to  the  general  inquiry;  the  Commission  is 
also  to  suggest  a  remedy  to  correct  the  evils,  if  they  exist,  and  to  conduct  the 
investigation  at  its  earliest  convenience  and  report  from  time  to  time.10 

The  amending  joint  resolution  (27  Stat.  L.,  443 ;  2  Supp.  E.  S.,  80) 
of  March  21,  1906,  gives  to  the  Commission  the  same  power  and  au- 
thority to  perform  the  duties  required  and  to  accomplish  the  purposes 
of  the  resolution,  respecting  the  coal  and  oil  investigation,  as  it  has 
under  the  act  to  regulate  commerce  and  amending  acts.  The  same 
resolution  makes  applicable  to  the  investigation  the  act  relating  to 
testimony  before  the  Interstate  Commerce  Commission  upon  the  sub- 
ject of  immunity  (act  Feb.  11,  1893). 

In  the  partial  report  made  in  pursuance  of  this  resolution,  under 
date  of  January  25,  1907,  the  Commission  recommended,  as  follows : 

First.  That  every  common  carrier  engaged  in  interstate  transportation  of  coal 
be  required  to  make  public  the  system  of  car  distribution  in  effect  upon  its 
railway  and  the  several  divisions  thereof,  showing  how  the  equipment  for  coal 
service  is  divided  between  the  several  divisions  of  its  road  and  how  the  same,  in 
times  when  the  supply  of  equipment  does  not  equal  the  demand,  is  divided  among 
the  several  mining  operations  along  such  road,  and  that  the  carrier  further  be 
required  to  publish  at  stated  periods,  and  at  each  divisional  headquarters  upon  its 
line  of  road,  the  system  of  ear  distribution  in  effect  and  the  actual  distribution 
made  to  each  mining  operation  under  such  system. 

Second.  That  where  the  capacity  of  the  mines  is  the  basis  for  the  distribution 
of  equipment,  a  fair,  just,  and  equitable  rating  of  the  mines  be  required,  and 
that  provision  be  made  for  the  representation  of  owners  of  the  mines  at  the 
rating  thereof. 

8  This  method  of  securing  information  has  been  frequently  used  by  the  legis- 
lature; some  resolutions  are  joint,  while  others  are  passed  by  either  the  Senate 
or  the  House.  The  former  confer  authority  while  resolutions  of  the  latter  kind 
ask  for  information,  which  is  often  in  the  possession  of  the  Commission,  although 
further  investigation  may  be  necessary.  Illustrations  of  the  numerous  resolutions 
asking  for  information  will  be  found  in  20th  Ann.  Kept.,  14. 

10  The  first  report  under  this  resolution  was  House  Doc.  No.  561,  59th  Cong., 
2d  session. 


58  DUTIES  UNDER  PARTICULAR  ACTS 

Third.  That  after  reasonable  time  carriers  engaged  in  interstate  commerce  be 
prohibited  from  using  "individual"  or  "private  cars"  for  the  handling  of  coal 
traffic;  and  further,  that  when  a  carrier  is  unable  to  furnish  all  the  cars  re- 
quired by  all  the  shippers  upon  its  line,  all  cars  in  service  on  the  road,  excepting 
individual  or  privately  owned  cars  until  their  use  is  prohibited,  be  treated  as  the 
equipment  of  the  company  and  subject  to  distribution  according  to  the  system 
or  plan  in  effect  at  that  time. 

Fourth.  That  carriers  engaged  in  interstate  commerce  be  forbidden  after  rea- 
sonable time  to  own  or  have  any  interest,  directly  or  indirectly,  in  any  operated 
coal  properties,  except  such  as  are  exclusively  for  their  own  fuel  supply,  and  that 
ownership,  either  directly  or  indirectly,  by  officers  or  employees  of  common  car- 
riers of  any  coal  properties  or  any  of  the  stock  of  coal  companies  along  the  line 
of  road  by  which  they  are  employed  be  forbidden. 

The  cases  involving  the  distribution  of  cars  to  coal  mines  are : 
U.  S.  ex  reL  Coffman  v.  N.  &  W.  E.  Co.  (109  Fed.  821)  ;  Logan  Coal  Co.  v.  P. 
B.  (154  Fed.  497) ;  C.  &  A.  E.  Co.  v.  I.  C.  C.  in  Circuit  Court  for  northern  dis- 
trict of  Illinois,  1908;  U.  S.  ex  rel  Pitcairn  v.  B.  &  O.  (154  Fed.  108)  ;  K.  Com. 
v.  H.  V.  E.  Co.  (12  I.  C.  C.  398) ;  Traer,  rec.  v.  C.  &  A.  E.  Co.  (13  I.  C.  C. 
51) ;  Eoyal  C.  &  C.  Co.  v.  S.  E.  Co.  (13  I.  C.  C.  440)  ;  E.  &  E.  C.  Co.  v.  B.  &  O. 
(14  I.  C.  C.  46)  ;  U.  S.  ex  rel.  Kingwood  v.  W.  Va.  N.  E.  Co.  (125  Fed.  252) ; 
Powhatan  C.  &  C.  Co.  v.  N.  &  W.  E.  Co.  (13  I.  C.  C.  69) ;  E.  &  E.  C.  Co.  v.  B. 
&  O.  (14  I.  C.  C.  46). 

Sec.  54.  Authority  of  Commission  under  act  to  promote  the  safety  of 
employees  on  railroads  (Ash  Pan  Act) — The  Interstate  Commerce 
Commission  has  cast  upon  it,  under  section  4  of  the  provisions  of  this 
act  (35  Stat.  L.,  476),  the  duty  of  enforcing  it,  and  the  powers  given 
by  preceding  acts  are  extended  to  the  Commission  for  that  purpose. 
The  act  prohibits  in  section  1  the  use  after  January  1,  1910,  of  any 
locomotive  not  equipped  with  an  ash  pan  which  can  be  dumped  and 
cleaned  without  the  necessity  of  an  employee  going  under  the  locomo- 
tive. 

Sec.  55.  Authority  of  Commission  over  street  railways  in  the  District 
of  Columbia. — By  section  16  of  an  act  approved  May  23,  1908  (35 
Stat.  L.,  246),  city  railroads  in  the  District  of  Columbia  are  required  to 
supply  and  operate  a  sufficient  number  of  cars,  clean,  sanitary,  in  good 
repair,  with  proper  and  safe  power,  equipment,  appliances,  and  ser- 
vice, comfortable  and  convenient,  and  so  operate  the  same  as  to  give 
expeditious  passage  to  all  persons  desirous  of  using  the  cars,  without 
crowding.  Under  this  act  the  Commission  is  given  power  to  require 
and  compel  obedience  to  this  provision  and  to  make,  alter,  and  amend 
needful  rules  and  recommendations  in  this  behalf  and  further  to  make 
such  orders  and  regulations  as  it  may  deem  reasonable  and  proper  to 
the  exercise  of  the  powers  given  by  the  act.  Prosecutions  for  viola- 
tions of  the  act  are,  by  section  17,  to  be  on  information  of  the  Com- 
mission in  the  Police  Court  of  the  District  of  Columbia.11 

n  The  Commission  on  July  1,  1908,  appointed  3  examiners,  under  its  authority 
by  act  of  May  23,  1908,  to  appoint  special  examiners  to  administer  oaths,  ex- 


DUTIES   UNDER   PARTICULAR   ACTS  59 

Sec.  56.  Authority  of  Commission  under  the  act  to  promote  the  safety 
of  employees  and  travellers. — This  act  (34  Stat.  L.,  1415),  called  the 
"hours  of  labor  act",  provides,  in  section  2,  for  the  number  of  hours 
during  which  a  railroad's  employees  may  be  kept  on  duty.  It  is,  in 
section  4,  made  the  duty  of  the  Commission  to  enforce  and  execute  the 
provisions  of  the  act,  and  the  powers  previously  granted  by  other 
acts  are  extended  to  the  Commission  for  the  purpose  of  executing  this 
act.  It  is  made  the  duty  of  the  Commission,  in  section  3,  to  lodge  with 
the  district  attorney  information  of  any  violations  of  the  act  which 
may  come  to  its  knowledge. 

The  act  further  provides,  in  section  3,  that  the  Commission  may, 
after  full  hearing,  extend  the  period  within  which  a  carrier  shall 
comply  with  the  proviso  relating  to  telegraph  operators. 

Under  this  act  the  Commission  has  prescribed  rules  regarding  re- 
ports from  carriers  concerning  the  hours  during  which  employees  are 
worked,  for  the  purpose  of  detecting  violations  of  the  law.12 

Sec.  57.  Authority  of  Commission  under  act  to  promote  the  safe 
transportation  in  interstate  commerce  of  explosives  and  other  danger- 
ous articles  (35  Stat.  L.,  554). — Under  the  provisions  of  section  2  of 
this  act  the  Commission  has  authority  to  formulate  regulations  for 
the  safe  transportation  of  explosives,  said  regulations  being  binding 
upon  all  common  carriers  engaged  in  interstate  commerce  which  trans- 
port explosives  by  land.  The  Commission  is  authorized  upon  its  own 
motion,  or  upon  application  made  by  an  interested  party,  to  make 
changes  or  modifications  in  the  regulations  made  in  this  behalf.  It 
is  provided  that  the  regulations  made  in  pursuance  of  the  act  shall 
be  in  accord  with  the  best  known  practicable  means  for  securing 
safety  in  transit,  and  cover  the  packing,  marking,  loading,  and  hand- 
ling while  in  transit,  and  precautions  necessary  to  determine  whether 
the  material  when  offered  is  in  proper  condition  to  transport.  The 
regulations  are  to  take  effect  three  months  after  their  formation  and 
promulgation,  and  to  remain  in  effect  until  reversed,  set  aside,  or 
modified. 

There  are  sections  prohibiting  the  transportation  of  certain  ex- 
plosives unless  the  conditions  are  complied  with,  and  an  offense  under 
the  act  is  a  misdemeanor,  and  upon  conviction  one  is  subject  to  fine 
and  imprisonment. 

amine  witnesses,  and  receive  testimony,  who,  jointly,  are  to  sit  as  a  board  to  hear 
complaints  against  the  street  railway  systems  of  the  City  of  Washington.  This 
board  consists  of  Gen.  John  M.-  Wilson,  U.  S.  Army  (retired),  Henry  L.  West, 
one  of  the  Commissioners  of  the  District  of  Columbia,  and  Thomas  W.  Smith, 
merchant.  The  secretary  of  the  board  is  H.  C.  Eddy. 

"  Proceedings  were  recently  instituted  in  the  United  States  Circuit  Court  at 
Philadelphia,  alleging  that  the  orders  of  the  Commission  concerning  the  exam- 
ination of  carriers'  records,  for  the  purpose  of  ascertaining  violations  of  this  act 
are  in  violation  of  the  fourth  amendment  of  the  Constitution,  relating  to  searches 
and  seizures. 


60  DUTIES  UNDER  PARTICULAR  ACTS 

Under  this  act  the  Commission  by  an  order  effective  July  15,  1908, 
provided  regulations  for  the  transportation  of  explosives. 

Sec.  58.  Duty  of  chairman  of  Commission  under  arbitration  act  (30 
Stat.  L.,  424) — By  section  2  the  chairman  of  the  Interstate  Commerce 
Commission,  with  the  Commissioner  of  Labor,  upon  the  request  of 
either  party  to  a  controversy  concerning  wages  of  employees  of  com- 
mon carriers  (except  masters  of  vessels  and  seamen)  engaged  in  in- 
terstate commerce  is  authorized  to  communicate  with  the  parties  to  the 
controversy,  and  attempt  by  mediation  and  conciliation  to  amicably 
effect  settlement;  and,  if  mediation  and  conciliation  be  unsuccessful, 
endeavor  to  secure  arbitration  of  the  controversy.  If  articles  of  arbi- 
tration be  signed  a  copy  is  to  be  furnished  the  chairman,  who  is  to 
file  the  same  in  the  office  of  the  Commission.  The  chairman  is  au- 
thorized by  section  6  to  call  together  the  arbitrators  after  agreement 
to  arbitrate  is  signed,  but  may  decline  to  do  so  unless  it  appears  that 
the  award  can  be  regarded  as  binding  upon  the  employees." 

The  powers  conferred  by  this  act  were  not  invoked  for  some  years 
after  its  passage.  Within  the  past  two  or  three  years,  however,  the 
chairman  of  the  Interstate  Commerce  Commission  and  the  Commis- 
sioner of  Labor  have  been  called  upon  to  mediate  in  several  cases. 

Sec.  59.  Relation  of  the  Interstate  Commerce  Commission  to  the  anti- 
trust law." — Since  the  decision  of  the  Supreme  Court  in  U.  S.  v. 
Trans-Missouri  Assn.  (166  U.  S.,  290),  by  which  it  was  held  that  the 
antitrust  law"  applied  to  common  carriers  engaged  in  interstate 
commerce,  a  considerable  number  of  complaints  before  the  Commission 
have  alleged  that  the  rates  or  practices  of  carriers  are  brought  into 
being  and  maintained  in  violation  of  that  act.  The  purpose  of  this 
has  apparently  been  to  indicate  that  because  there  has  been  a  uni- 
formity in  rates  and  practices  the  rate  or  practice  is  therefore  in 

11  In  re  S.  P.  Co.  (155  Fed.,  1001),  held  that  the  arbitration  provided  for  by 
the  act  is  essentially  a  common-law  arbitration,  and  rests  solely  on  the  written 
agreement  of  the  parties,  which  limits  and  determines  not  only  the  rights  of  the 
parties,  but  also  the  extent  of  the  powers  of  the  arbitrators;  and,  further,  that 
such  agreement  is  to  be  construed  in  accordance  with  the  principles  governing 
the  construction  of  contracts,  rather  than  those  applicable  to  pleadings. 

Sec.  10  of  the  arbitration  act  (Act  of  June  1,  1898)  was  held  unconstitutional 
in  U.  S.  v.  Scott  (U.  S.  Dist.  Court,  Western  District  of  Kentucky)  in  that  this 
section  is  not  in  a  constitutional  sense  a  regulation  of  commerce  among  the 
States,  inasmuch  as  its  essential  object  is  to  regulate  certain  phases  of  the  right 
of  an  employer  to  choose  his  servants,  whether  the  duties  of  them  shall  be  in  in- 
terstate commerce. 

14 ' '  An  act  to  protect  trade  and  commerce  against  unlawful  restraints  and 
monopolies,  approved  July  2,  1890  (26  Stat.  L.,  209). 

"This  act  has  been  recently  included  as  one  of  the  "commerce  laws"  (Eose 
Code  of  Federal  Procedure).  This  author  includes  the  antitrust  acts  of  1890  and 
1894,  the  interstate  commerce  acts  including  the  expediting  act,  immunity  act,  and 
Elkins'  law,  under  the  general  denomination  of  commerce  laws.  Such  classifica- 
tion seems  proper  in  that  these  laws  are  closely  descended  from  the  commerce 
clause  of  the  Constitution. 


DUTIES   UNDER  PARTICULAR   ACTS  61 

violation  of  the  act  to  regulate  commerce  because  the  agreement  to 
maintain  and  enforce  the  same  is  in  violation 'of  the  antitrust  law.18 

Where  a  complaint  alleges  that  the  rates  or  practices  are  maintained 
in  violation  of  the  antitrust  law  the  Commission  has  ordinarily  at  the 
hearing  received  evidence  tending  to  show  the  violation  of  that  act, 
and  if  the  evidence  has  been  of  sufficient  weight  to  indicate  violation 
the  Commission  have  referred  the  testimony  to  the  Attorney-General 
for  his  action.17 

In  several  instances  it  has  been  argued  that  because  a  rate  or  prac- 
tice is  in  force  and  effect  by  reason  of  agreement  between  carriers, 
which  agreement  is  alleged  to  be  in  violation  of  the  antitrust  law, 
therefore  the  rate  of  practice  is  unreasonable  or  unduly  discrimina- 
tory. It  should  be  observed,  however,  "that  the  Commission  is  not 
charged  with  the  enforcement w  of  the  antitrust  law,  its  duties  being 
confined  to  the  act  to  regulate  commerce  and  such  other  acts  as  con- 
fer upon  it  authority.  The  carrier,  by  making  an  agreement  to  main- 
tain rates,  may  possibly  violate  the  Sherman  antitrust  law  and  yet  not 
violate  the  act  to  regulate  commerce.  The  former  prohibits  all  con- 
tracts in  restraint  of  trade,  whether  reasonable  or  unreasonable;  the 
latter  is  directed  against  rates  and  practices  which  are  unjust  and 
unreasonable.  Thus  an  agreement  to  maintain  a  reasonable  rate  or 
proper  practice  may  be  in  violation  of  the  antitrust  act,  but  not  of 
the  interstate  commerce  act.  An  agreement  to  maintain  an  unreason- 
able rate  or  unduly  discriminatory  practice  may  be  in  violation  both 
of  the  antitrust  act  and  of  the  act  to  regulate  commerce. 

Commission  may  consider  whether  advanced  rates  result  from  con- 
cert of  action : 

INSTANCE.— In  Central  Y.  P.  Assn.  v.  I.  C.  R.  Co.  (10  I.  C.  C.,  505)  it  was  held 
where  an  advance  of  rates  was  complained  of  and  alleged  to  be  the  result  of  con- 
certed action  by  the  defendants  and  other  carriers  subject  to  the  act,  that,  al- 
though the  question  of  whether  such  concert  of  action  is  in  violation  of  the 
antitrust  law  is  for  determination  by  the  courts,  it  nevertheless  is  within  the 
province  and  duty  of  the  Commission,  when  the  reasonableness  of  rates  is  in  issue 
before  it,  to  consider  whether  the  advanced  rates  resulted  from  informal  action 
or  by  the  concert  of  action  or  combination  of  carriers.  Affirmed  (Tift  v.  S.  R. 
Co.  10  I.  C.  C.,  548). 

Association  in  violation  of  antitrust  law  may  be  proper  party  com- 
plainant : 

INSTANCE.— In  Cattle  Raisers'  Assn.  v.  Ft.  W.  and  D.  C.  R.  Co.  (7  I.  C.  C., 

16  The  mere  agreement  to  maintain  a  rate  or  practice  may  be  in  violation  of 
the  antitrust  law  (Northern  Securities  Co.  v.  U.  S.,  193  U.  S.,  197). 

l7'For  example,  13th  Ann.  Rep.,  p.  15  et  seq. 

"In  Sprigg  v.  B.  &  O.  R.  Co.  (8  I.  C.  C.,  443)  it  was  held  that  the  Commission 
has  no  authority  to  administer  the  antitrust  law  or  to  determine  whether  it  has 
been  violated,  and  should  the  investigation  disclose  a  violation  of  that  law  the 
power  of  the  Commission  would  not  be  enlarged  nor  its  duty  changed  in  respect 
to  the  rate  involved  in  the  inquiry. 


62  DUTIES  UNDER  PARTICULAR  ACTS 

513)  it  was  held  that  a  corporation  whose  members  were  engaged  in  the  sale  of 
commodities  and  certain  by-laws  of  which  and  proceedings  were  in  violation  of 
the  antitrust  law  (act  July  2,  1890),  was  nevertheless  entitled  to  be  a  party  com- 
plainant under  section  13. 

In  some  instances  the  answers  of  defendant  carriers  have  set  up  the 
fact  that  the  complainant  is  an  association  existing  in  violation  of 
the  antitrust  law,  and  argue  therefrom  that  it  was  not  a  proper  party 
within  the  purview  of  the  statute ;  so,  also,  evidence  has  been  adduced 
in  some  instances  tending  to  show  such  facts.  The  Commission,  how- 
ever, broadly  construing  the  provisions  of  section  13,  have  permitted 
complaining  associations  having  by-laws  which  are  in  apparent  con- 
flict with  the  antitrust  law  to  file  and  prosecute  cases. 

A  rate  advanced  as  the  result  of  agreements  between  carriers  is  not 
necessarily  unreasonable : 

INSTANCE.— In  Enterprise  Mfg.  Co.  v.  G.  B.  Co.  (12  I.  C.  C.,  451),  the  Com- 
mission held  that  a  rate  which  is  advanced  as  a  result  of  an  agreement  among 
carriers,  even  if  such  agreement  be  with  color  of  violation  of  the  antitrust  act, 
will  not  on  that  ground  alone  be  declared  unreasonable;  evidence  of  such  viola- 
tion is  pertinent  and  must  be  considered,  but  the  existence  of  such  an  unlawful 
agreement,  even  when  proved,  is  not  conclusive  of  the  unreasonableness  of  the 
rates  so  advanced. 

The  Commission  has  no  authority  to  administer  the  antitrust  law, 
nor  to  determine  whether  it  has  been  violated : 

INSTANCE. — In  Spriggs  v.  B.  &  O.  B.  Co.  (8  I.  C.  C.,  443),  the  Commission  held 
that  it  had  no  authority  to  administer  the  antitrust  law,  or  even  to  determine 
whether  it  has  been  violated.  If  an  investigation  discloses  a  violation  of  that 
law,  the  power  of  the  Commission  is  not  enlarged  nor  its  duty  changed  in  respect 
of  the  rate  involved  in  the  inquiry.  No  relief  can  be  afforded  the  complainants 
in  this  proceeding  upon  the  theory  that  the  quarterly  ticket  was  withdrawn  under 
an  agreement  between  the  carriers  in  violation  of  the  antitrust  law,  even  if  the 
facts  were  found  in  support  of  that  contention. 

The  Commission  may  not,  and  generally  will  not,  pass  on  the  ques- 
tion whether  or  not  the  agreement  of  carriers  respecting  rates  and 
practices  is  in  violation  of  the  antitrust  act : 

INSTANCE. — In  China  &  Japan  T.  Co.  v.  Georgia  E.  Co.  (12  I.  C.  C.,  236),  the 
Commission  said:  The  evidence  of  complainants  tended  to  show  that  an  illegal 
agreement  to  advance  rates  on  cotton  piece  goods  was  entered  into  by  these  trans- 
continental lines  and  that  the  advanced  rates  were  put  in  in  consequence  of 
that  agreement.  We  do  not,  however,  find  it  necessary  to  pass  upon  that  ques- 
tion, because  if  it  were  answered  in  favor  of  the  complainants  we  should  still 
be  of  the  opinion  that  this  would  afford  no  ground  for  either  reducing  the  rate 
from  the  southern  mills  or  awarding  reparation. 

We  administer  the  act  to  regulate  commerce  alone. 

In  Warren  Mfg.  Co.  v.  S.  E.  Co.  (12  I.  C.  C.,  381),  it  was  held  that  the  viola- 
tion of  the  so-called  antitrust  act  by  unwarranted  agreements  in  restraint  of  trade 
by  carriers  of  interstate  commerce  is  not  within  the  jurisdiction  of  the  Commis- 
sion but  only  the  correction  of  unreasonable  rates  which  may  be  the  purpose  and 
effect  of  such  illegal  act. 


DUTIES  UNDER  PARTICULAR   ACTS  63 

Sec.  60.  Relation  of  the  Commission  to  customs  and  immigration  laws. 
— In  cases  involving  import  traffic,  whether  in  the  transportation  of 
commodities  or  of  passengers,  the  Commission  is  frequently  called 
upon  to  consider,  in  connection  with  the  rates  on  merchandise,  the 
custom  tariffs,  and  in  connection  with  the  transportation  of  passengers 
the  laws  pertaining  to  immigration  and  the  regulations  made  by  ex- 
ecutive authority  under  those  laws ;  thus,  if  the  rates  on  a  commodity 
from  domestic  territory  be  advanced  but  from  a  foreign  territory  re- 
main the  same  the  result  may  be  to  apparently  prejudice  the  domestic 
article  in  favor  of  the  imported;  so,  also,  in  other  cases  the  effect  of 
changes  in  rates  or  changes  in  customs  tariffs  may  be  brought  to  the 
attention  of  the  Commission.  The  Commission  is  not,  however,  charged 
with  enforcing  customs  laws  or  assisting  in  the  policy  of  the  Govern- 
ment in  the  collection  of  customs  duties,  nor  is  it  charged  with  inter- 
fering with  the  immigration  regulations. 

The  Commission  has  considered  advances  in  rates  and  changes  in 
customs  duties  as  affecting  the  volume  of  movement  of  a  domestic 
product : 

INSTANCE. — In  Natl.  Hay  Assn.  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  264)  the 
Commission  said: 

"After  the  change  [advance]  in  rates  complained  of  took  effect  the  volume  of 
these  [domestic]  shipments  were  considerably  diminished.  One  cause  for  this 
decrease  in  hay  shipments  to  eastern  points,  particularly  to  New  England  and 
New  York  City  destinations,  is  claimed  by  complainant  to  be  the  retention  by 
certain  of  the  defendants  of  commodity  rates  on  hay  produced  in  Canada  while 
enforcing  fifth  class  instead  of  sixth  class  rates  on  American  hay  from  the 
Middle  West.  These  commodity  rates  on  the  Canadian  product  having  remained 
substantially  the  same  after  as  they  were  before  January  1,  1900,  the  increase 
on  that  date  from  sixth  to  fifth  class  rates  on  American  hay  did  plainly  give 
that  much  advantage  to  the  foreign  hay  imported  from  Canada,  and  had  the 
result  also  of  diminishing  the  effect  of  the  duty  of  $4  per  ton  which  was  im- 
posed on  imported  hay  by  the  Dingley  Act  of  1897.  The  duty  on  such  hay  was 
increased  under  that  act  from  $2  per  ton,  which  has  been  fixed  by  the  act  of 
1893.  Under  the  preceding  McKinley  tariff  act  of  October,  1890,  the  duty  was 
$4  per  ton.  Prior  to  1890  the  duty  was  $2  per  ton.  Immediately  after  the 
passage  of  the  Dingley  Act  importations  from  Canada  began  to  fall  off,  and  be- 
tween that  time  (1897)  and  the  year  1900  they  were  much  less  than  they  had 
been  in  previous  years,  but  in  1900  and  1901  the  tonnage  of  imported  hay  was 
largely  increased.  *  *  *  . 

"All  but  a  few  tons  of  this  imported  hay  came  from  Canada  and  was  con- 
sumed very  largely  in  New  England  and  the  State  of  New  York.  The  de- 
fendants attribute  the  increase  in  importations  in  1900  entirely  to  the  short  crop 
of  that  year.  The  figures  for  the  succeeding  year  end,  as  stated  above,  with 
June  30,  and  the  crop  gathered  in  the  calendar  year  1901  had  not  then  begun  to 
move.  Undoubtedly  a  small  or  large  crop  in  the  United  States  must  operate  to 
increase  or  diminish  the  demand  in  New  England  or  New  York  for  hay  from 
Canada.  On  the  other  hand,  with  sixth  class  rates  prevailing  in  the  United 
States  and  a  duty  of  $4  per  ton  from  October,  1890  to  1893  on  imported  hay, 
the  imports  were  small  for  1891  and  1892  as  compared  with  those  in  the  fiscal 


64  DUTIES  UNDER  PARTICULAR  ACTS 

year  ending  June  30,  1890,  when  the  $2  duty  was  in  force;  under  sixth-class  rates 
in  the  United  States  and  a  hay  duty  of  $2  from  1893  to  1897  the  imports  in- 
creased gradually  to  large  proportions  in  1896;  with  sixth  class  rates  and  the 
duty  of  $4  restored  in  1897  the  imports  decreased  to  a  minimum  in  1898  and 
1899;  and  under  the  advance  in  rates  on  American  hay  from  sixth  to  fifth  class 
on  January  1,  1900,  the  imports  became  larger  in  1900  and  1901  than  in  any 
previous  year  above  given  except  1895  and  1896,  when  the  $2  duty  was  in  force." 

The  interstate  commerce  act  can  not  be  construed  to  make  it  co- 
operative with  tariff  laws : 

INSTANCE.— In  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197)  the  Supreme  Court 
said: 

"Another  position  taken  by  the  Commission  in  its  report  and  defended  in  the 
briefs  of  counsel  is  that  it  is  the  duty  of  the  Commission  to  so  construe  the  act 
to  regulate  commerce  as  to  make  it  practically  cooperate  with  what  is  assumed  to 
be  the  policy  of  the  tariff  laws.  This  view  is  thus  stated  in  the  report: 

"  'One  paramount  purpose  of  the  act  to  regulate  commerce,  manifest  in  all 
its  provisions,  is  to  give  to  all  dealers  and  shippers  the  same  rates  for  similar 
services  rendered  by  the  carrier  in  transporting  similar  freight  over  its  line. 
Now,  it  is  apparent,  from  the  evidence  in  this  case,  that  many  American  manu- 
facturers, dealers,  and  localities,  in  almost  every  line  of  manufacture  and  busi- 
ness, are  the  competitors  of  foreign  manufacturers,  dealers,  and  localities  for 
supplying  the  wants  of  American  consumers  at  interior  places  in  the  United 
States,  and  that  under  domestic  bills  of  lading  they  seek  to  require  from  Amer- 
ican carriers  like  service  as  their  foreign  competitors  in  order  to  place  their 
manufactured  goods,  property,  and  merchandise  with  interior  consumers.  The 
act  to  regulate  commerce  secures  them  this  right.  To  deprive  them  of  it  by  any 
course  of  transportation  business  or  device  is  to  violate  the  statute.'  (New  York 
Bd.  of  Trade  &  T.  v.  P.  E.  Co.,  4  I.  C.  C.  Eept.,  514). 

' '  Our  reading  of  the  act  does  not  disclose  any  purpose  or  intention,  on  the  part 
of  the  Congress,  to  thereby  reinforce  the  provisions  of  the  tariff  laws.  These  laws 
differ  wholly  in  their  objects  from  the  law  to  regulate  commerce.  Their  main 
purpose  is  to  collect  revenues  with  which  to  meet  the  expenditures  of  the  Gov- 
ernment, and  those  of  their  provisions  whereby  the  Congress  seeks  to  so,  adjust 
rates  as  to  protect  American  manufacturers  and  producers  from  competition  by 
foreign  low-priced  labor,  operate  equally  in  all  parts  of  the  country,"  and  in 
the  dissenting  opinion  by  Harlan,  J.,  it  was  said  respecting  the  relative  rates  on 
import  and  domestic  traffic  that  the  question  before  the  court  is  not  'controlled 
by  considerations  arising  out  of  tariff  enactments  of  the  Congress.'  " 

Commission  has  no  authority  to  interfere  with  immigration  regu- 
lations : 

INSTANCE. — In  Savery  v.  N.  Y.  &  H.  E.  E.  Co.  (2  I.  C.  C.,  338)  it  was  held 
that  where  the  reception  of  immigration  at  the  port  of  New  York  had  been  put 
by  State  statute  under  the  control  of  a  board  of  commissioners  and  the  board  had 
made  regulations  for  the  protection  of  immigrants  until  they  were  entrained  for 
their  respective  ultimate  destinations  and  the  Federal  Government  had  sanctioned 
such  control  by  the  commissioners  of  immigration,  the  Commission  had  no  author- 
ity to  interfere  with  such  regulations. 


CHAPTER  V 

INTERPRETATION  AND  CONSTRUCTION  OF  THE  ACT  TO  REGU- 
LATE COMMERCE 


Sec.  61.  General  rule  of  construction  of  the  act  to  regulate  commerce. 
— In  interpreting  and  construing  the  act  to  regulate  commerce  the 
usual  rules  for  the  construction  of  statutes  apply ; 1  parts  of  the  stat- 
ute being  in  derogation  and  parts  being  in  affirmation  of  the  common 
law,  the  rules  for  interpretation  and  construction  applicable  to  the 
two  classes  of  statute  law  may  in  specific  instances  be  followed.2 

Statute  must  be  broadly  construed: 

INSTANCE. — In  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197)  the  Supreme  Court 
had  occasion  to  construe  several  sections  of  the  act  and  prescribe  a  broad  rule 
of  construction  as  follows: 

"Even  in  construing  the  terms  of  a  statute,  courts  must  take  notice  of  the 
history  of  legislation,  and  out  of  different  possible  constructions  select  and  apply 
the  one  that  best  comports  with  the  genius  of  our  institutions  and  is  therefore 
most  likely  to  have  been  the  construction  intended  by  the  law-making  power. 
Commerce,  in  its  largest  sense,  must  be  deemed  to  be  one  of  the  most  important 
subjects  of  legislation,  and  an  intention  to  promote  and  facilitate  it,  and  not 
to  hamper  or  destroy  it,  is  naturally  to  be  attributed  to  the  Congress.  The  very 
terms  of  the  statute,  that  charges  must  be  reasonable,  that  discrimination  must 
not  be  unjust,  and  that  preference  or  advantage  to  any  particular  person,  firm, 
corporation,  or  locality  must  not  be  undue  or  unreasonable,  necessarily  imply  that 
strict  uniformity  is  not  to  be  enforced;  but  that  all  circumstances  and  conditions 
which  reasonable  men  would  regard  as  affecting  the  welfare  of  the  carrying  com- 
panies, and  of  the  producers,  shippers,  and  consumers,  should  be  considered  by 
a  tribunal  appointed  to  carry  into  effect  and  enforce  the  provisions  of  the  act." 

Sec.  62.  Construction  of  the  act  to  regulate  commerce  by  the  courts. — 
The  statute  is  to  be  broadly  *  construed,  as  a  whole,*  in  the  public  in- 

1  An  excellent  exposition  of  the  construction  of  Federal  statutes  will  be  found 
in  Federal  Statutes  Annotated,  vol.  1,  "Preliminary  Article  on  Statutes  and  Statu- 
tory Construction"  by  Charles  C.  Moore. 

2U.  S.  v.  Hanley  (71  Fed.,  672)  ;  Tift  v.  S.  E.  Co.,  (123  Fed.,  789). 

»I.  C.  C.  v.  E.  T.  V.  &  G.  E.  Co.  (85  Fed.,  107). 

*Van  Patten  v.  C.  M.  &  St.  P.  E.  Co.  (81  Fed.,  547):  "The  intent  of  the 
Congress  is  to  be  gathered  from  a  consideration  of  the  entire  act,  and  not  solely 
from  detached  portions  thereof,  and  the  familiar  rule  of  construction  is  to  be 
followed,  to-wit,  that,  in  determining  the  meaning  of  words  employed,  the  gen- 
eral purpose  of  the  act  and  the  evils  sought  to  be  remedied  must  always  be  kept 
in  mind,  and,  furthermore,  parts  of  the  act  are  not  to  be  so  construed  as  to  defeat 
other  features  of  the  same;  nor  is  such  a  construction  to  be  given  to  the  act,  in 
whole  or  in  part,  as  may  tend  to  prevent  the  proper  enforcement  of  the  legislative 
purpose. ' ' 


66  INTERPRETATION    AND    CONSTRUCTION 

terests,"  to  facilitate  commerce,'  and  in  the  light  of  the  construction 
of  the  English  statutes/  on  which  it  is  largely  modeled.  The  act  was 
not  passed  for  the  benefit  of  carriers ;  *  and  if  relief  is  sought  by  a  car- 
rier the  act  will  be  interpreted  against  the  carrier,8  but  not  to  take 
away  common  law  rights  to  a  greater  degree  than  the  language  and 
purposes  of  the  act  require.10 

Carriers  are  free  to  manage  their  business,  subject  to  the  prohibi- 
tions in  the  statute : 

INSTANCE.— In  C.  N.  O.  &  T.  P.  B.  Co.  v.  I.  C.  C.  (162  U.  S.,  184)  it  was  said 
that,  subject  to  the  two  prohibitions  that  charges  shall  not  be  unjust  or  un- 
reasonable, and  that  there  should  not  be  unjust  discrimination  between  persons 
or  traffic  similarly  circumstanced,  the  act  leaves  common  carriers  free,  as  at  com- 
mon law,  to  make  special  contracts  looking  to  the  increase  of  their  business,  to 
classify  their  traffic,  to  adjust  and  apportion  their  rates  so  as  to  meet  all  the 
necessities  of  commerce,  and  generally  to  manage  their  interests  upon  the  same 
principles  which  are  adopted  in  other  trades  and  pursuits. 

Sec.  63.  Rules  of  construction  provided  in  the  acts  to  regulate  com- 
merce.— The  present  acts  to  regulate  commerce  contain  certain  rules 
of  construction  applicable  thereto.  It  is  provided — 

(a)  Under  section  1,  that  the  language  shall  not  be  construed  to 
prevent  exchange  of  authorized  passes ; 

(6)  Under  section  3,  that  a  common  carrier  shall  not  be  required 
to  give  the  use  of  tracks  or  terminal  facilities  to  another  carrier  in  like 
business ; 

(c)  Under  section  4,  that  a  carrier  shall  not  be  authorized  to  charge 
as  great  compensation  for  shorter  as  for  longer  haul; 

(d)  Under  the  provisions  of  section  20,  not  to  deprive  a  holder  of 
the  receipt  of  a  bill  of  lading  of  any  remedy  which  he  now  may  have 
under  existing  law; 

5 1.  C.  C.  v.  L.  &  N.  E.  Co.  (73  Fed.,  409),  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U. 
S.,  197),  Eeagan  v.  Farmers'  L.  &  T.  Co.  (154  U.  S.,  412). 

•T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197). 

In  I.  C.  C.  v.  B.  &  O.  E.  Co.  (43  Fed.,  37),  it  was  held  that  the  construction 
given  to  the  English  acts  by  English  courts  when  accepted  must  be  received  as  if 
incorporated  into  the  act.  % 

7 1.  C.  C.  v.  B.  &  O.  E.  Co.  (145  U.  S.,  263),  McDonald  v.  Hovey  (110  TJ.  S., 
619),  I.  C.  C.  v.  A.  M.  E.  Co.  (168  U.  S.,  144),  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162 
U.  S.,  197),  D.  G.  H.  &  M.  E.  Co.  v.  L  C.  C.  (74  Fed.,  803),  G.  C.  &  S.  F.  E.  Co. 
v.  Maimi  S.  S.  Co.  (86  Fed.,  407),  I.  C.  C.  v.  L.  &  N.  E.  Co.  (73  Fed.,  409).  The 
difference  between  commerce  in  England  and  this  country  and  in  the  respective 
statutes  must  be  considered  (D.  G.  H.  &  M.  E.  Co.  v.  I.  C.  C.,  74  Fed.,  803; 
Lindquist  v.  G.  T.  E.  Co.,  121  Fed.,  918). 

The  courts  may  recur  to  the  history  of  the  times  when  an  act  was  passed  to 
ascertain  the  reasons  for,  and  the  meaning  of,  particular  provisions  but  the 
views  of  individual  members  of  the  legislature  cannot  be  considered  (U.  S.  v. 
U.  P.  E.  Co.,  91  U.  S.,  72).  The  Commission,  however,  gives  great  weight  to  the 
statements  of  legislators  (Lykes  S.  S.  Co.  v.  Commercial  Union,  13  I.  C.  C.,  310). 

•K.  &  L  B.  Co.  v.  L.  &  N.  E,  Co.  (37  Fed.,  567). 

•L.  E.  &  M.  E.  Co.  v.  St.  L.  I.  M.  &  S.  E.  Co.  (63  Fed.,  775),  K.  &  I.  B.  Co. 
v.  L.  &  N.  E.  Co.  (37  Fed.,  61). 

"I.  C.  C.  v.  L.  &  N.  E.  Co.  (73  Fed.,  409),  C.  &  N.  W.  E.  Co.  v.  Osborne 
(52  Fed.,  914). 


INTERPRETATION    AND    CONSTRUCTION  67 

(e)  Under  the  provisions  of  section  22,  that  nothing  is  to  prevent 
the  carriage,  storage,  or  handling  of  property  at  free  or  at  reduced 
rates  for  specified  classes,  nor  to  prevent  free  carriage  of  certain 
designated  persons,  nor  to  prevent  reduced  rates  to  certain  designated 
classes,  nor  to  prevent  issuance  of  mileage  excursions  or  commutation 
tickets,  nor  to  prevent  the  giving  of  free  carriage  to  officers  and  em- 
ployees, nor  to  prevent  exchange  of  passes  or  tickets  with  other  rail- 
road companies,  nor  to  abridge  or  alter  existing  remedies  now  (Feb. 
8,  1895)  existing  at  common  law  or  by  statute,  nor  to  affect  pending 
litigation,  nor  to  prevent  issuance  of  joint  interchangeable  5,000-mile 
tickets ; 

(/)  Under  the  provisions  of  section  23  that  the  right  to  mandamus 
shall  not  exclude  other  remedies  provided  for ; 

(g)  1.  That  immunity  shall  only  extend  to  the  natural  person;  act 
defining  right  of  immunity  to  witness,  etc.,  approved  June  30,  1906 ; 

2.  That  the  act,  omission,  failure  of  any  person,  or  any  officer,  agent, 
or  other  person  acting  for  or  employed  by  any  common  carrier  or  a 
shipper  acting  within  the  scope  of  his  employment  shall,  under  the 
provisions  of  section  1  of  the  Elkins'  law  be  deemed  the  act,  omis- 
sion, or  failure  of  such  carrier  or  shipper,  as  well  as  of  the  individual ; 

3.  That  the  rates  filed  and  published  shall,  as  against  the  carrier, 
its  officers  or  agents,  in  any  prosecution  beginning  under  the  Elkins' 
law,  be  conclusively  deemed  to  be  the  legal  rate  (Elkins'  law,  sec.  1) ; 

4.  That  any  departure  from  a  filed  and  published  rate  or  any  offer 
to  depart  therefrom  shall,  under  the  provisions  of  section  1  of  the 
Elkins'  law,  be  deemed  an  offense  under  such  section. 

Sec.  64.  Interpretation  of  the  act  to  regulate  commerce  by  the  Com- 
mission.— The  Commission,  early  in  its  history,  expressed  its  views 
concerning  the  proper  interpretation  of  the  act.  It  being  urged  that 
the  statute  is  a  penal  statute  and  that  the  strict  rules  of  construction 
should  be  applied,  the  Commission  said : 

While  this  statute  contains  certain  provisions  for  penalties,  in  the  execution  of 
which  the  courts  will,  no  doubt,  follow  the  recognized  canons  of  construction, 
nevertheless  the  statute  as  a  whole  should  be  regarded  as  highly  remedial  in  its 
purpose  and  scope.  It  was  clearly  designed  to  secure  to  the  public  equal  and 
impartial  rights  and  privileges  and  to  put  an  end  to  ancient  and  well-known 
abuses  in  the  services  rendered  by  common  carriers.  Such  a  statute  should  be 
construed  liberally,  fairly,  of  course,  but  always  with  the  object  in  view  of 
reaching  as  closely  as  possible  the  end  proposed  by  the  legislative  intention  and 
making  the  beneficial  result  desired  operative  to  its  greatest  available  extent.11 

In  its  sixth  annual  report  (1892)  the  Commission  speaking  of  the 
interpretation  of  the  statute  by  the  courts  said: 

It  is  not  too  much  to  say  that  judicial  interpretation  has  limited  its  scope  and 
ascribed  to  it  an  intent  not  contemplated  when  it  was  passed.  If  its  supposed 
meaning,  as  understood  at  the  time  of  its  passage,  had  been  upheld  by  the 

uln  re  Express  Companies  (1  I.  C.  C.,  349). 


68  INTERPRETATION   AND    CONSTRUCTION 

courts,  it  is  believed  that  its  operation  would  have  been  much  more  effective 
and  its  usefulness  greatly  increased.  So  far  as  failure  has  attended  the  efforts 
to  give  it  proper  administration,  that  failure  can  be  mainly  attributed  to  differ- 
ences between  its  apparent  meaning  and  the  judicial  interpretation  which  some 
of  its  provisions  have  received  (pp.  5,  6). 

Sec.  65.  Construction  of  the  act  to  regulate  commerce  by  the  Commis- 
sion.— It  can  safely  be  said  that  in  interpreting  and  construing  the 
several  provisions  the  Commission  has  been  guided  by  the  purposes 
and  intent  of  the  law,  as  well  as  by  its  phraseology.  That  the  ob- 
ject of  the  statute  was  to  cure  certain  alleged  evils  of  railway  trans- 
portation and  to  afford  a  remedy  to  shippers  to  bring  about  that  re- 
sult have  been  the  premises  for  a  broad  and  liberal  construction  of 
the  law.  This  is  true  not  only  as  to  the  rights  created  but  also  as  to 
the  remedies  provided.  Not  infrequently  the  Commission  considers 
the  reports  of  committees  of  the  Congress,  the  statements  of  legisla- 
tors," and,  in  general,  gives  greater  weight  to  these  than  do  the  courts 
in  similar  instances.  The  decisions  of  the  English  courts  will,  in  ap- 
propriate cases,  be  considered  and  respected  by  the  Commission.18 

The  cases  in  which  the  Commission  has  construed  the  several  pro- 
visions of  the  act,  arranged  by  sections,  will  be  found  in  the  succeed- 
ing section. 

The  statute  is  to  be  read  in  the  light  of  the  purposes  for  which 
it  was  enacted : 

INSTANCE. — In  re  C.  St.  P.  &  K.  C.  B.  Co.  (2  I.  C.  C.,  231)  the  Commission 
said:  "Every  statute  is  to  be  read  in  the  light  of  its  history  and  of  the  evils  it 
was  intended  to  redress.  And  as  matter  of  public  history  nothing  can  be  more 
notorious  than  that  the  act  to  regulate  commerce  had  for  its  leading  and  general 
purpose,  to  which  other  purposes  were  subordinate,  to  provide  effectual  securities 
that  the  general  public,  in  making  use  of  the  means  of  railroad  transportation 
provided  by  law  for  their  service,  should  have  the  benefits  which  the  law  had 
undertaken  to  give,  but  of  which  in  very  many  cases  it  was  found  the  parties 
entitled  to  them  were  deprived  by  the  arbitrary  conduct,  the  favoritism,  or  the 
unreasonable  exactions  of  those  who  managed  them.  It  may  be  affirmed  with 
entire  confidence  that  the  act  was  not  passed  to  protect  railroad  corporations 
against  the  misconduct  or  the  mistakes  of  their  officers,  or  even  primarily  to 
protect  such  corporations  against  each  other.  The  act  does,  indeed,  require  them 
to  afford  reasonable,  proper,  and  equal  facilities  for  the  interchange  of  traf- 
fic between  their  respective  lines,  but  even  this  requirement  was  for  the  public 
benefit  more  particularly  than  for  the  benefit  of  the  carriers  themselves.  Every- 
where in  the  act  the  primary  purpose  apparent  in  its  provisions  is  that  indi- 
viduals dealing  in  matters  of  transportation  with  the  carriers  regulated  by  it 
shall  not,  in  respect  to  the  conveniences  the  carriers  are  supposed  to  offer  to  the 
public,  be  wronged  by  arbitrary  conduct  or  by  favoritism,  or  be  subjected  to  ex- 
tortion. It  is  to  this  end  that  the  act  declares  that  all  charges  made  by  the 

"For  example,  see  Lykes  S.  S.  Co.  v.  Commercial  Union  (13  I.  C.  C.,  310)  and 
Cosmopolitan  Shipping  Co.  v.  Hamburg-American  Packet  Co.  (13  I.  C.  C.,  266). 

uTraer,  receiver  v.  C.  B.  &  Q.  B.  Co.  (14  I.  C.  C.,  165),  Calif.  Com.  Assn.  v. 
Wells  Fargo  &  Co.  (14  I.  C.  C.,  422),  L.  E.  &  M.  E.  Co.  v.  E.  T.  V.  &  G.  E,  Co. 
(3  I.  C.  C.,  1),  E.  E.  Com.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 


INTERPRETATION   AND   CONSTRUCTION  69 

carriers  it  regulates  shall  be  reasonable  and  just,  and  the  purpose  of  the  declara- 
tion is  to  establish  the  rule  that  the  charges  shall  not  be  extortionate. ' ' 

In  Farrar  v.  E.  T.  V.  &  G.  E.  Co.  (1  I.  C.  C.,  480)  the  Commission,  after  stat- 
ing that  in  the  transportation  of  freight  by  railroads,  while  the  aggregate  charge 
is  continually  increasing  the  farther  the  freight  is  carried,  the  rate  per  ton 
per  mile  is  constantly  growing  less  all  the  time,  has  become  axiomatic,  said: 
"The  act  to  regulate  commerce,  so  far  from  throwing  hampering  restrictions  or 
obstacles  in  the  way  of  the  operation  of  this  salutary  rule,  gives  it  all  the  ben- 
efit and  aid  of  its  sanction  and  safeguards  by  providing  that  the  carrier  shall 
be  entitled  to  receive  a  reasonable  compensation  for  the  services  performed,  upon 
open  published  rates,  against  which  no  competitor  can  take  advantage  by  allowing 
shippers  secret  rebates  and  drawbacks  in  order  to  get  the  business." 

Since  the  last  amendment  to  the  act  the  Commission  has  been  called 
upon  to  construe  the  word  "practices"  as  used  in  section  15  of  the 
act,  by  which  section  the  Commission  is  given  jurisdiction  upon  com- 
plaint and  a  finding  "that  any  practice  whatsoever  of  such  carrier  or 
carriers  affecting  such  rates  are  unjust  or  unreasonable,  etc.  *  *  * 
to  determine  and  prescribe  *  *  *  what  regulation  or  practice  in 
respect  to  such  transportation  is  just,  fair,  and  reasonable  to  be  there- 
after followed"  and  it  has  been  held  that  the  term  "practices"  in 
this  connection  must  receive  the  broadest  interpretation  on  account 
of  the  purposes  of  the  statute." 

The  term  ' '  practices  "  is  to  receive  a  broad  interpretation : 
INSTANCE. — In  Eail  and  Eiver  Coal  Co.  v.  B.  &  O.  E.  Co.  (14  I.  C.  C.,  86) 
where  it  was  contended  that  the  distribution  of  coal  cars  among  various  mines 
on  a  carrier's  line  were  not  regulations  or  practices  "affecting  rates,"  the  Com- 
mission said :  ' '  The  question  is  one  of  very  large  importance.  If  the  numerous 
and  various  regulations  and  practices  of  carriers  which  enter  so  vitally  into 
questions  of  transportation  do  not  'affect  rates,'  in  the  sense  attributed  by  coun- 
sel for  the  defendant  to  that  phrase,  and  therefore  lie  outside  the  jurisdiction  of 
the  Commission,  our  power  to  protect  the  shipping  public  against  abuses  is  much 
less  extensive  than  has  generally  been  understood.  There  is  no  more  insidious  or 
effective  way  by  which  a  carrier  may  discriminate  between  its  shippers  than 
through  a  regulation  or  practice  that  denies  to  them  the  equal  enjoyment  of  its 
facilities  and  if  the  rules  of  carriers  with  respect  to  car  distribution  are  not 
included  within  the  scope  of  the  law,  the  prosperity  of  shippers,  during  periods 
of  car  shortage,  largely  lies  in  the  hands  of  the  carriers  on  whose  lines  they  con- 
duct their  business  enterprises,  whenever  such  carriers  are  disposed  to  and  do 
actually  favor  some  shippers  at  the  expense  of  others.  By  giving  to  one  manu- 
facturer a  larger  proportion  of  cars  than  he  is  entitled  to,  when  the  volume  of  his 
traffic  is  compared  with  that  of  a  competitor,  his  business  may  be  encouraged  and 
built  up  while  the  business  of  the  competitor  may  be  destroyed,  if  the  Commission 
has  no  authority  to  intervene  on  his  behalf.  That  there  is  need  of  such  authority 
will  appear  from  an  examination  of  the  published  reports  of  proceedings  in 
which  the  Commission  has  found  just  occasion  to  exercise  it. 
.''The  power  upon  complaint  made  to  deal  with  unjust,  preferential,  and 

14  Eail  and  E.  Coal  Co.  v.  B.  &  O.  E.  Co.  (14  I.  C.  C.,  86).  The  term  coupled 
with  "regulations"  has  been  held  to  cover  the  distribution  of  cars  to  a  coal 
line  (Eail  and  E.  Co.  v.  B.  &  O.  E.  Co.,  14  I.  C.  C.,  86) ;  and  also  rules  and  reg- 
ulations prescribing  who  shall  load  and  unload  cars  (Wholesale  F.  and  P.  Asso- 
ciation v.  A.  T.  &  S.  F.  E.  Co.,  14  I.  C.  C.,  410). 


70  INTERPRETATION  AND    CONSTRUCTION 

discriminatory  regulations  and  practices  of  carriers  was  clearly  vested  in  the 
Commission  under  section  15  of  the  act  as  it  stood  prior  to  the  amendatory  act 
of  June  29,  1906.  Whether  or  not  it  still  exists  under  section  15  of  the  amended 
act  must  be  ascertained  by  examining  the  whole  act  as  it  now  stands  with  a  view 
to  gathering  the  general  intent  and  purpose  of  the  enactment,  and  then  by  ex- 
amining the  various  provisions  by  which  the  intent  and  purpose  are  sought  to  be 
made  effective.  The  underlying  purpose  of  this  legislation,  as  will  doubtless 
be  agreed,  was  to  put  shippers  on  a  basis  of  absolute  equality;  to  assure  to  them 
not  only  equal  rates  but  an  impartial  enjoyment  of  the  facilities  and  services 
of  interstate  carriers.  That  principle  appears  throughout  the  act,  but  nowhere 
more  clearly  than  in  sections  2  and  3.  The  former  assures  to  shippers  an  equal- 
ity of  rates  for  the  transportation  of  property  under  substantially  similar  circum- 
stances and  conditions;  and  the  latter  assures  to  them  an  equality  in  the  oppor- 
tunity to  use  the  rates,  facilities,  and  services  cf  carriers.  One  right  supplements 
the  other.  An  equality  in  rates  without  an  equal  opportunity  to  use  the  facilities 
of  carriers  would  fall  short  of  the  general  objects  sought  to  be  accomplished  by 
the  Congress.  On  the  other  hand,  the  right  to  impartial  treatment  by  carriers 
in  the  transportation  of  their  merchandise  would  mean  little  to  shippers  if  not 
accompanied  by  an  assurance  of  an  equality  also  in  rates.  And  when  we  ap- 
proach the  consideration  of  any  special  provision  in  the  act,  this  understanding 
of  its  general  scope  and  purpose  must  not  be  lost  sight  of.  As  was  said  by 
Chief  Justice  Marshall  in  The  Durousseau  v.  U.  S.  (6  Cranch,  307):  'The  spirit 
as  well  as  the  letter  of  a  statute  must  be  respected,  and  where  the  whole  context 
of  the  law  demonstrates  a  particular  intent  in  the  legislature  to  effect  a  certain 
object,  some  degree  of  implication  may  be  called  in  to  aid  that  intent.' 

"But,  while  keeping  in  mind  the  general  intent  and  spirit  of  the  act,  we  are 
by  no  means  to  be  understood  as  indicating  that  our  power  to  deal  with  undue 
preferences  and  unlawful  discriminations,  when  accomplished  by  carriers  through 
unjust  regulations  and  practices,  rests  upon  implication;  or  that  it  is  necessary 
by  implication  to  inject  into  section  15  explanatory  words  that  are  not  embraced 
within  its  text.  The  language  of  that  provision  is  entirely  sufficient  in  itself  to 
enable  the  Commission  to  redress  wrongs  of  the  character  complained  of  in  this 
proceeding.  In  reaching  this  conclusion  we  are  not  required  to  resort  to  ingenuity 
in  construction  or  to  rest  the  argument  upon  a  mere  matter  of  punctuation  as  sug- 
gested by  counsel.  In  our  view  any  practice  or  regulation  that  unlawfully  dis- 
criminates against  one  shipper  and  affords  an  undue  preference  to  another  ship- 
per is  a  regulation  or  practice  affecting  rates  within  the  meaning  of  that  phrase 
as  used  in  the  clause  in  question.  Any  regulation  or  practice  that  withdraws  from 
a  shipper  the  equal  opportunity  of  using  and  taking  advantage  of  the  rates  of- 
fered by  a  carrier  to  the  public  is  clearly  a  regulation  or  practice  affecting  rates 
in  the  sense  in  which  that  phrase  is  used  in  the  amended  act  at  the  point  in  ques- 
tion. To  hold  otherwise,  as  the  defendant  urges,  would  be  to  put  the  narrowest 
possible  construction  upon  those  words,  in  disregard  of  the  general  objects  and 
purposes  of  the  enactment.  And  this  we  are  not  warranted  in  doing  under  any 
recognized  rule  of  statutory  construction,  and  more  especially  when  a  remedial 
statute  is  under  consideration." 

The  substance  and  not  the  form  to  be  considered : 

INSTANCE. — In  Eichenberg  v.  S.  P.  Co.  (14  I.  C.  C.,  250)  it  was  said:  "The 
Commission  is  not  concluded  by  the  form  but  looks  to  the  substance  of  the  rela- 
tions between  corporations  engaged  in  interstate  commerce." 

Sec.  66.  Construction  of  particular  sections  by  the  Commission. — In 
the  course  of  the  decisions  of  the  Commission  it  has  naturally  been 


INTERPRETATION   AND    CONSTRUCTION  71 

called  upon  to  construe  and  apply  the  various  sections  and  parts 
thereof  of  the  statute ;  the  list  of  cases,  arranged  by  sections  and  sub- 
jects, is  as  follows : 

Construction  of  Section  1 

REASONABLE  RATES 

Martin  v.  C.  B.  &  Q.  E.  Co.  (2  I.  C.  G.,  25). 

Business  Men's  Assn.  of  Minn.  v.  C.  St.  P.  M.  &  O.  E.  Co.  (2  I.  C.  C.,  52). 

Business  Men's  Assn.  of  Minn.  v.  C.  &  N.  W.  E.  Co.  (2  I.  C.  C.,  73). 

Hurlburt  v.  L.  S.  &  M.  S.  E.  Co.  (2  I.  C.  C.,  122). 

Hurlburt  v.  P.  E.  Co.  (2  I.  C.  C.,  130). 

Parkhurst  &  Co.  v.  P.  Co.  (2  I.  C.  C.,  131). 

Nicolai  v.  P.  E.  Co.  (2  I.  C.  C.,  131). 

Lincoln  Board  Trade  v.  B.  &  M.  E.  Co.  in  Neb.  (2  I.  C.  C.,  147). 

Ee  C.  St.  P.  &  K.  C.  E.  Co.  (2  I.  C.  C.,  231). 

Howell  v.  N.  Y.  L.  E.  &  W.  E.  Co.  (2  I.  C.  C.,  272). 

Detroit  Board  of  Trade  v.  G.  T.  E.  Co.  (2  I.  C.  C.,  315). 

Savery  &  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (2  I.  C.  C.,  338). 

N.  O.  Cotton  Ex.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (2  I.  C.  C.,  375). 

Eice,  Eobinson  &  Witherop  v.  W.  N.  Y.  &  P.  E.  Co.  (2  I.  C.  C.,  389). 

2d  Ann.  Eept.,  I.  C.  C.,  424. 

Myers,  survivor,  v.  Penna.  Co.  (2  I.  C.  C.,  573). 

Mich.  Congress  Water  Co.  v.  C.  &  G.  T.  E.  Co.  (2  I.  C.  C.,  594). 

Logan  v.  C.  &  N.  W.  E.  Co.  (2  I.  C.  C.,  604). 

Ee  Tariffs  and  Classifications  A.  &  W.  P.  E.  Co.  (3  I.  C.  C.,  19). 

Sanger  v.  S.  P.  Co.  (3  I.  C.  C.,  134). 

James  &  Abbott  v.  E.  T.  V.  &  G.  E.  Co.  (3  I.  C.  C.,  225). 

Leonard  v.  C.  &  A.  E.  Co.  (3  I.  C.  C.,  241). 

Chappelle  v.  C.  &  A.  E.  Co.  (3  I.  C.  C.,  241). 

McMorran  v.  G.  T.  E.  Co.  of  Canada  (3  I.  C.  C.,  252). 

C.  E.  I.  &  P.  E.  Co.  v.  C.  &  A.  E.  Co.  (3  I.  C.  C.,  450). 

Thurber  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473). 

Leggett  &  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473). 

Greene  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473). 

N.  O.  Cotton  Ex.  v.  I.  C.  E.  Co.  (3  I  C.  C.,  534). 

N.  O.  Cotton  Ex.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (3  I.  C.  C.,  534). 

Elvey  v.  I.  C.  E.  Co.  (31.  C.  C.,  652). 

Pankey  v.  E.  &  D.  E.  Co.  (3  I.  C.  C.,  658). 

Lehmann,  Higginson  &  Co.  v.  S.  P.  Co.  (4  I.  C.  C.,  1). 

Warner  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C.,  32). 

Andrews  Soap  Co.  v.  P.  C.  &  St.  L.  E.  Co.  (4  I.  C.  C.,  41). 

Ee  Alleged  Excessive  Freight  Bates  and  Charges  on  Food  Products  (4  I.  C.  C., 
48). 

Manufacturers'  &  Jobbers'  Union  of  Mankato  v.  M.  &  St.  L.  E.  Co.  (4  I.  C. 
C.,  79). 

Proctor  &  Gamble  v.  C.  H.  &  D.  E.  Co.  (4  I.  C.  C.,  87). 

San  Bernardino  Board  of  Trade  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  104). 

Poughkeepsie  Iron  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C.,  195). 

Harvard  Co.  v.  Penn.  Co.  (4  I.  C.  C.,  212). 

Eice  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  228). 

King  &  Co.  v.  N.  Y.  N.  H.  &  H.  E.  Co.  (4  I.  C.  C.,  251). 

Haddock  v.  D.  L.  &  W.  E.  Co.  (4  I.  C.  C.,  296). 


72  INTERPRETATION   AND    CONSTRUCTION 

4th  Ann.  Kept.  I.  C.  C.,  337-358. 

N.  Y.  Board  Trade  and  Transportation  v.  P.  E.  Co.  (4  I.  C.  C.,  447). 
Coxe  Bros.  &  Co.  v.  L.  V.  E.  Co.  (4  I.  C.  C.,  535). 
Delaware  State  Grange  v.  N.  Y.  P.  &  N.  E.  Co.  (4  I.  C.  C.,  588). 
Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  E.  Co.  (4  L  C.  C.,  664). 
Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  E.  Co.    Be  Application  P.  E.  Co.  (5  I.  C. 
C.,  1). 

Buchanan  v.  N.  P.  E.  Co.  (5  L  C.  C.,  7). 

E.  Com.  of  Fla.  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  13). 

Lehmann,  Higginson  &  Co.  v.  T.  &  P.  E.  Co.   (5  I.  C.  C.,  44). 

Macloon  v.  C.  &  N.  W.  E.  Co.  (5  I.  C.  C.,  84). 

Perry  v.  F.  C.  &  P.  E.  Co.  (5  L  C.  C.,  97). 

Eising  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  120). 

Murphy,  Wasey  &  Co.  v.  W.  E.  Co.  (5  I.  C.  C.,  122). 

Lincoln  Creamery  v.  U.  P.  E.  Co.  (5  I.  C.  C.,  156). 

Delaware  State  Grange,  etc.  v.  N.  Y.  P.  &  N.  E.  Co.  (5  I.  C.  C.,  161). 

Eice  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  193). 

Bice  v.  C.  W.  &  B.  E.  Co.  (5  I.  C.  C.,  193). 

Eau  Claire  Board  Trade  v.  C.  M.  &  St.  P.  E.  Co.  (5  I.  C.  C.,  264). 

Anthony  Salt  Co.  v.  M.  P.  E.  Co.  (5  I.  C.  C.,  299). 

Anthony  Salt  Co.  v.  St.  L.  &  S.  F.  E.  Co.  (5  L  C.  C.,  299). 

Matthews  v.  U.  P.  E.  Co.  (5  I.  C.  C.,  299). 

Matthews  v.  A.  T.  &  S.  F.  E.  Co.  (5  I.  C.  C.,  299). 

Barton  v.  C.  E.  L  &  P.  E.  Co.  (5  L  C.  C.,  299). 

E.  Com.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  Ocean  S.  S.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (5  I.  C.  C.,  324). 

E.  Com,  of  Ga.  v.  W.  &  A.  E.  Co.  (5  L  C.  C.,  324). 

E.  Com.  of  Ga.  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  324). 

Indpt.  Eefiners'  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (5  L  C.  C.,  415). 

Indpt.  Refiners'  Assn.  v.  P.  E.  Co.  (5  I.  C.  C.,  415). 

Matter  of  Alleged  Unlawful  Charges  for  Transportation  of  Coal  by  the  L. 
&  N.  E.  Co.  (5  I.  C.  C.,  466). 

Merchants'  Union  of  Spokane  Falls  v.  N.  P.  E.  Co.  (5  I.  C.  C.,  478). 

Potter  Mfg.  Co.  v.  C.  &  G.  T.  E.  Co.  (5  I.  C.  C.,  514). 

Loud  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  529) 

Board  Trade  Chattanooga  v.  E.  T.  V.  &  G.  E.  Co.  (5  I.  C.  C.,  546). 

Chamber  Commerce  Minneapolis  v.  G.  N.  E.  Co.  (5  I.  C.  C.,  571). 

James  &  Abbott  v.  C.  P.  E.  Co.  (5  I.  C.  C.,  612). 

Parkhurst  &  Co.  v.  P.  E.  Co.  (5  I.  C.  C.,  635). 

Nicolai  v.  P.  E.  Co.  (5  I.  C.  C.,  635). 

Brownell  v.  C.  &  C.  M.  E.  Co.  (5  L  C.  C.,  638). 

Tecumseh  Celery  Co.  v.  C.  J.  &  M.  E.  Co.  (5  I.  C.  C.,  663). 

Truck  Farmers'  Assn.  v.  N.  E.  E.  Co.  (6  I.  C.  C.,  295). 

Indpt.  Eefiners'  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (6  I.  C  C.,  378). 

Milk  Producers'  Protective  Assn.  v.  D.  L.  &  W.  E.  Co.  (7  I.  C.  C.,  92). 

Gary  v.  Eureka  Springs  E.  Co.  (7  I.  C.  C.,  286). 

Galloway  v.  L.  &  N.  E.  Co.  (7  I.  C.  C.,  431). 

Cattle  Raisers'  Assn.  v.  F.  W.  &  D.  C.  E.  Co.  (7  I.  C.  C.,  513). 

American  "Warehousemen's  Assn.  v.  I.  C.  E.  Co.  (7  I.  C.  C.,  456). 

Board  R.  Comrs.  of  S.  C.  v.  F.  E.  Co.  (8  I.  C.  C.,  1). 

Savannah  Bu.  of  Freight  v.  C.  &  S.  E.  Co.  (7  I.  C.  C.,  611). 


INTERPRETATION  AND  CONSTRUCTION  73 

Phillips,  Bailey  &  Co.  v.  L.  &  N.  E.  Co.  (8  I.  C.  C.,  93). 

Savannah  Bu.  of  Freight  &  Transp.  v.  L.  &  N.  E.  Co.  (8  I.  C.  C.,  377). 

Penna.  Millers'  State  Assn.  v.  P.  &  E.  E.  Co.  (8  I.  C.  C.,  531). 

Hilton  Lumber  Co.  v.  W.  &  W.  E.  Co.  (9  I.  C.  C.,  17). 

Natl.  Wholesale  Lumber  Dealers'  Assn.  v.  N.  &  W.  E.  Co.  (9  I.  C.  C.,  87). 

Mayor  and  Council  of  Tifton,  Ga.  v.  L.  &  N.  E.  Co.  (9  I.  C.  C.,  160). 

Johnson  v.  C.  St.  P.  M.  &  O.  E.  Co.  (9  I.  C.  C.,  221). 

Shippers'  Union  of  Phoenix  v.  A.  T.  &  S.  F.  E.  Co.  (9  I.  C.  C.,  250). 

Natl.  Hay  Assn.  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  264). 

Ee  Proposed  Advances  in  Freight  Bates  (9  I.  C.  C.,  382). 

Proctor  &  Gamble  Co.  v.  C.  H.  &  D.  E.  Co.  (9  I.  C.  C.,  440). 

Ulric  &  Williams  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  495). 

Mayor  and  City  Council  of  Wichita  v.  A.  T.  &  S.  F.  E.  Co.  (9  I.  C.  C.,  558). 

Mayor  and  City  Council  of  Wichita  v.  C.  E.  I.  &  P.  E.  Co.  (9  I.  C.  C.,  569). 

S.  Marten  v.  L.  &  N.  E.  Co.  (9  L  C.  C.,  581). 

Buckeye  Buggy  Co.  v.  C.  C.  C.  &  St.  L.  E.  Co.  (9  I.  C.  C.,  620). 

Macloon  v.  B.  &  M.  E.  Co.  (9  I.  C.  C.,  642). 

Wichita  v.  M.  P.  E.  Co.  (10  I.  C.  C.,  35). 

Chamber  Commerce  v.  S.  E.  (10  I.  C.  C.,  111). 

Cist  v.  M.  C.  E.  Co.  (10  I.  C.  C.,  217). 

Glade  Coal  Co.  v.  B.  &  O.  E.  Co.  (10  I.  C.  C.,  226). 

Denison  L.  &  P.  Co.  v.  M.  K.  &  T.  E.  Co.  (10  I.  C.  C.,  337). 

Gardner  &  Clark  v.  S.  E.  Co.  (10  L  C.  C.,  342). 

Ee  Pere  Marquette  E.  Co.  (10  L  C.  C.,  360). 

Wrigley  v.  C.  C.  C.  &  St.  L.  E.  Co.  (10  L  C.  C.,  412). 

Chicago  Live  S.  Ex.  v.  C.  G.  W.  E.  Co.  (10  I.  C.  C.,  428). 

Duluth  Shingle  Co.  v.  D.  S.  S.  &  A.  E.  E.  Co.  (10  I.  C.  C.,  489). 

Central  Yellow  Pine  Assn.  v.  I.  C.  E.  Co.  (10  I.  C.  C.,  505). 

Pitts  v.  St.  L.  &  S.  F.  E.  Co.  (10  I.  C.  C.,  684). 

Pitts  v.  A.  T.  &  S.  F.  E.  Co.  (10  L  C.  C.,  691). 

Hastings  Malting  Co.  v.  C.  M.  &  St.  P.  E.  Co.  (11  I.  C.  C.,  675). 

INSTRUMENTALITIES   OF   SHIPMENT   OE   CARRIAGE 

Heck  &  Petree  v.  E.  T.  V.  &  G.  E.  Co.  (1  I.  C.  C.,  495). 

Gary  v.  Eureka  Springs  E.  Co.  (7  I.  C.  C.,  286). 

Cattle  Eaisers'  Assn.  v.  F.  W.  &  D.  C.  E.  Co.  (7  I.  C.  C.,  513). 

Penna.  Millers'  State  Assn.  v.  P.  &  E.  Co.  (8  I.  C.  C.,  531). 

Glade  Coal  Co.  v.  B.  &  O.  E.  Co.  (10  I.  C.  C.,  226). 

Ee  P.  M.  E.  Co.  (10  I.  C.  C.,  360). 

CARRIERS  AND  TRAFFIC  SUBJECT  TO  JURISDICTION 

1st  Ann.  Eept.  I.  C.  C.,  p.  271. 

Heck  &  Petree  v.  E.  T.  V.  &  G.  E.  Co.  (1  I.  C.  C.,  495). 

Mo.  &  111.  T.  &  L.  Co.  v.  C.  G.  &  S.  W.  E.  Co.  (1  I.  C.  C.,  30). 

Ee  Express  Companies  (1  I.  C.  C.,  349). 

Ee  Filing  Joint  Tariffs  (1  I.  C.  C.,  657). 

2d  Ann.  Eept.  I.  C.  C.,  p.  398. 

N:  J.  Fruit  Ex.  v.  C.  E.  Co.  of  N.  J.  (2  I.  C.  C.,  142). 

Ee  Acts  and  Doings  of  G.  T.  E.  Co.  (3  I.  C.  C.,  89). 

White  v.  M.  C.  E.  Co.  (3  I.  C.  C.,  281). 

3d  Ann.  Eept.  I.  C.  C.,  314,  381,  432. 

Mattingly  v.  P.  Co.  (3  I.  C.  C.,  592). 


74  INTERPRETATION   AND   CONSTRUCTION 

Bice,  Robinson  &  Witherop  v.  W.  N.  Y.  &  P.  R.  Co.  (4  L  C.  C.,  131). 
Capehart  v.  L.  &  N.  R.  Co.  (4  I.  C.  C.,  265). 

N.  Y.  Board  Trade  &  Transportation  v.  P.  R.  Co.  (4  I.  C.  C.,  447). 
Shamberg  v.  D.  L.  &  W.  R.  Co.  (4  I.  C.  C.,  630). 
Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  R.  Co.  (4  I  C.  C.,  664). 
James  &  Mayer  Buggy  Co.  v.  C.  N.  O.  &  T.  P.  R.  Co.  (4  I.  C.  C.,  744). 
Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  R.  Co.     Re  Application  of  P.  R.  Co. 
(5  L  C.  C.,  1). 

R.  Com.  of  Fla.  v.  S.  F.  &  W.  R.  Co.  (5  I.  C.  C.,  13). 
Raworth  v.  N.  P.  R.  Co.  (5  I.  C.  C.,  234). 
R.  Com.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 
R.  Com.  of  Ga.  v.  Ocean  S.  S.  Co.  (5  I.  C.  C.,  324). 
R.  Com.  of  Ga.  v.  C.  N.  O.  &  T.  P.  R.  Co.  (5  I.  C.  C.,  324). 
R.  Com.  of  Ga.  v.  W.  &  A.  R.  Co.  (5  I.  C.  0.,  324). 
R.  Com.  of  Ga.  v.  S.  C.  R.  Co.  (5  I.  C.  C.,  324). 
R.  Com.  of  Ga.  v.  L.  &  N.  R.  Co.  (5  I.  C.  C.,  324). 
Merchants'  Union  of  Spokane  Falls  v.  N.  P.  R.  Co.  (5  I.  C.  C.,  478). 
Chamber  Commerce  Minneapolis  v.  G.  N.  R.  Co.  (5  L  C.  C.,  571). 

EXCHANGE  OF  TRANSPORTATION 

Matter  of  Right  of  Railway  Companies  and  Baggage  Express  Companies  to 
Exchange  Transportation  (12  I.  C.  C.,  39).    Cf.  Sec.  22. 

Construction  of  Section  2 

TTNJTJST  DISCRIMINATION 

Providence  Coal  Co.  v.  .F.  &  W.  R.  Co.  (1  I.  C.  C.,  107). 

Burton  Stock  Car  Co.  v.  C.  B.  &  Q.  R.  Co.  (1  I.  C.  C.,  132). 

Larrison  v.  C.  &  G.  T.  R.  Co.  (1  I.  C.  C.,  147). 

Smith  v.  N.  P.  R.  Co.  (1  I.  C.  C.,  208). 

Harwell  v.  C.  &  W.  R.  Co.  (1  I.  C.  C.,  236). 

Councill  v.  W.  &  A.  R.  Co.  (1  L  C.  C.,  339). 

Riddle,  Dean  &  Co.  v.  P.  &  L.  E.  R.  Co.  (1  I.  C.  C.,  374). 

Crews  v.  R.  &  D.  R.  Co.  (1  I.  C.  C.,  401). 

Heard  v.  Ga.  R.  Co.  (1  L  C.  C.,  428). 

Boston  Chamber  Commerce  v.  L.  S.  &  M.  S.  R.  Co.  (1  I.  C.  C.,  436). 

Rice  v.  L.  &  N.  R.  Co.  (1  I.  C.  C.,  503). 

Riddle,  Dean  &  Co.  v.  N.  Y.  L.  E.  &  W.  R.  Co.  (1  I.  C.  C.,  594). 

Riddle,  Dean  &  Co.  v.  B.  &  O.  R.  Co.  (1  I.  C.  C.,  608). 

Martin  v.  S.  P.  R.  Co.  (2  I.  C.  C.,  1). 

Martin  v.  C.  B.  &  Q.  R.  Co.  (2  I.  C.  C.,  25). 

Business  Men's  Assn.  of  Minn.  v.  C.  St.  P.  M.  &  O.  R.  Co.  (2  I.  C.  C.,  52). 

Business  Men's  Assn.  of  Minn.  v.  C.  &  N.  W.  R  Co.  (2  I.  C.  C.,  73). 

Schofield  v.  L.  S.  &  M.  S.  R.  Co.  (2  I.  C.  C.,  90). 

Griffee  v.  B.  &  M.  R.  R.  Co.  in  Neb.  (2  I.  C.  C.,  301). 

Savery  &  Co.  v.  N.  Y.  C.  &  H.  R.  R.  Co.  (2  I.  C.  C.,  338). 

Slater  v.  N.  P.  R.  Co.  (2  I.  C.  C.,  359). 

Re  Relative  Tank  and  Barrel  Rates  on  Oil  (2  I.  C.  C.,  365). 

Rice,  Robinson  &  Witherop  v.  W.  N.  Y.  &  P.  R.  Co.  (2  I.  C.  C.,  389). 

Re  Passenger  Tariffs  and  Rate  Wars  (2  I.  C.  C.,  513). 

Chamber  Commerce  Milwaukee  v.  F.  &  P.  M.  R.  Co.  (2  I.  C.  C.,  553). 

Lippman  &  Co.  v.  I.  C.  R.  Co.  (2  I.  C.  C.,  584). 

Re  Joint  Water  and  Rail  Lines  (21.  C.  C.,  645). 

Re  Passenger  Tariffs  (2  I.  C.  C.,  649). 


INTERPBETATION   AND    CONSTRUCTION  75 

Ee  Tariffs  and  Classifications  of  A.  &  W.  P.  E.  Co.  (3  I.  C.  C.,  19). 

Ee  Acts  and  Doings  of  G.  T.  E.  Co.  of  Canada  (3  I.  C.  C.,  89). 

Heard  v.  Ga.  E.  Co.  (3  I.  C.  C.,  111). 

N.  Y.  P.  Ex.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  137). 

McMorran  v.  G.  T.  E.  Co.  of  Canada  (3  I.  C.  C.,  252). 

3d  Ann.  Eept.  I.  C.  C.  297,  302,  317,  374. 

Bates  v.  P.  E.  Co.  (3  I.  C.  C.,  435). 

P.  C.  &  St.  L.  E.  Co.  v.  B.  &  O.  E.  Co.  (3  I.  C.  C.,  465). 

Thurber  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473). 

Leggett  &  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473). 

Sidman  v.  E.  &  D.  E.  Co.  (3  I.  C.  C.,  512). 

Shamberg  v.  D.  L.  &  W.  E.  Co.  (4  I.  C.  C.,  630). 

Alford  v.  C.  E.  I.  &  P.  E.  Co.  (3  I.  C.  C.,  519). 

N.  O.  Cotton  Ex.  v.  I,  C.  E.  Co.  (3  I.  C.  C.,  534). 

N.  O.  Cotton  Ex.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (3  L  C.  C.,  534). 

Worcester  Excursion  Car  Co.  v.  P.  E.  Co.  (3  I.  C.  C.,  577). 

Stone  &  Carten  v.  D.  G.  H.  &  M.  E.  Co.  (3  I.  C.  C.,  613). 

Elvey  v.  I.  C.  E.  Co.  (3  I.  C.  C.,  652). 

Lehmann,  Higginson  &  Co.  v.  S.  P.  E.  Co.  (4  I.  C.  C.,  1). 

Warner  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C.,  32). 

Andrews  Soap  Co.  v.  P.  C.  &  St.  L.  E.  Co.  (4  I.  C.  C.,  41). 

Manufacturers'  &  Jobbers'  Union  of  Mankato  v.  M.  &  St.  L.  E.  Co.  (4  I.  C.  C., 
79). 

Eice,  Eobinson  &  Witherop  v.  W.  N.  Y.  &  P.  E.  Co.  (4  I.  C.  C.,  131). 

Board  Trade  Chicago  v.  C.  &  A.  E.  Co.  (4  I.  C.  C.,  158). 

Capehart  v.  L.  &  N.  E.  Co.   (4  I.  C.  C.,  265). 

Haddock  v.  D.  L.  &  W.  E.  Co.  (4  I.  C.  C.,  296). 

Kauffman  Milling  Co.  v.  M.  P.  E.  Co.  (4  I.  C.  C.,  417). 

N.  Y.  Board  Trade  &  Trans,  v.  P.  E.  Co.  (4  I.  C.  C.,  447). 

Coxe  Bros.  &  Co.  v.  L.  V.  E.  Co.  (4  L  C.  C.,  535). 

Shamberg  v.  D.  L.  &  W.  E.  Co.  (4  I.  C.  C.,  530). 

Hamilton  &  Brown  v.  C.  E.  &  C.  E.  Co.  (4  I.  C.  C.,  686). 

Beaver  &  Co.  v.  P.  C.  &  St.  L.  E.  Co.  (4  I.  C.  C.,  733). 

Lehmann,  Higginson  &  Co.  v.  T.  &  P.  E.  Co.  (5  I.  C.  C.,  44). 

Hezel  Milling  Co.  v.  St.  L.  A.  &  T.  H.  E.  Co.  (5  I.  C.  C.,  57). 

Matter  of  Carriage  of  Persons  Free  or  at  Eeduced  Eates  by  B.  &  M.  E.  Co.  (5 
I.  C.  C.,  69). 

Harvey  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  153). 

Toledo  Produce  Ex.  v.  L.  S.  &  M.  S.  E.  Co.  (5  I.  C.  C.,  166). 

Kemble  v.  L.  S.  &  M.  S.  E.  Co.  (5  I.  C.  C.,  166). 

Eiee  v.  C.  W.  &  B.  E.  Co.  (5  L  C.  C.,  193). 

Eice  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  193). 

Eaworth  v.  N.  P.  E.  Co.  (5  I.  C.  C.,  234). 

E.  Com.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  Ocean  S.  S.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  W.  &  A.  E.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  324). 

Indept.  Eefiners'  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (5  L  C.  C.,  415). 

Indpt.  Eefiners'  Assn.  v.  P.  E.  Co.  (5  I.  C.  C.,  415). 

Matter  of  Alleged  Unlawful  Charges  for  Transportation  of  Coal  by  L.  &  N.  E. 
Co.  (5  I.  C.  C.,  466). 


76  INTERPRETATION   AND    CONSTRUCTION 

Potter  Mfg.  Co.  v.  C.  &  G.  T.  E.  Co.  (5  I.  C.  C.,  514). 

BrowneU  v.  C.  &  C.  M.  B.  Co.  (5  I.  C.  C.,  638). 

Kice  v.  St.  L.  8.  W.  B.  Co.  (5  I.  C.  C.,  660). 

Tecumseh  Celery  Co.  v.  C.  J.  &  M.  B.  Co.  (5  I.  C.  C.,  663). 

Alleged  Unlawful  Bates  and  Practices  (7  I.  C.  C.,  33). 

Cattle  Eaisers'  Assn.  v.  F.  W.  &  D.  C.  B.  Co.  (7  L  C.  C.,  513). 

American  Warehousemen's  Assn.  v.  I.  C.  B.  Co.  (7  I.  C.  C.,  556). 

Savannah  Bu.  of  Freight  v.  C.  &  S.  B.  Co.  (7  I.  C.  C.,  601). 

Brockway  v.  U.  &  D.  B.  Co.  (8  I.  C.  C.,  21). 

Listman  Mill.  Co.  v.  C.  M.  &  St.  P.  B.  Co.  (8  I.  C.  C.,  47). 

Penna.  Millers'  State  Assn.  v.  P.  &  B.  B.  Co.  (8  I.  C.  C.,  531). 

Hilton  Lumber  Co.  v.  W.  &  W.  B.  Co.  (9  I.  C.  C.,  17). 

Buckeye  Buggy  Co.  v.  C.  C.  C.  &  St.  L.  B.  Co.  (9  I.  C.  C.,  620). 

Be  Transportation  of  Salt  (10  I.  C.  C.,  148). 

Central  Yellow  Pine  Assn.  v.  V.  S.  &  P.  B.  Co.  (10  I.  C.  C.,  193). 

Be  Division  of  Joint  Bates,  etc.  (10  I.  C.  C.,  385). 

Wrigley  v.  C.  C.  C.  &  St.  L.  B.  Co.  (10  L  C.  C.,  412). 

Be  Transportation  of  Coal  and  Mine  Supplies  (10  L  C.  C.,  473). 

Duluth  Shingle  Co.  v.  D.  S.  S.  &  A.  B.  Co.  (10  I.  C.  C.,  489). 

Thompson  v.  P.  B.  Co.  (10  I.  C.  C.,  640). 

City  Gas  Co  v.  C.  V.  E.  Co.  (11  I.  C.  C.,  104). 

Construction  of  Section  3 

PREFERENCE    OR    ADVANTAGE 

Providence  Coal  Co.  v.  P.  &  W.  E.  Co.  (1  I.  C.  C.,  107). 

Keith  v.  Ky.  Central  B.  Co.  (1  I.  C.  C.,  189). 

Boards  of  Trade  Union,  etc.  v.  C.  M.  &  St.  P.  E.  Co.  (1  I.  C.  C.,  215). 

Baymond  v.  C.  M.  &  St.  P.  B.  Co.  (1  I.  C.  C.,  230). 

Harwell  v.  C.  &  W.  E.  Co.  (1  I.  C.  C.,  236). 

Councill  v.  W.  &  A.  E.  Co.  (1  I.  C.  C.,  339). 

Beynolds  v.  W.  N.  Y.  &  P.  B.  Co.  (1  L  C.  C.,  393). 

Boston  Chamber  Commerce  v.  L.  S.  &  M.  S.  B.  Co.  (1  I.  C.  C.,  436). 

Crews  v.  E.  &  D.  E.  Co.  (1  I.  C.  C.,  401). 

Heard  v.  Ga.  E.  Co.  (1  L  C.  C.,  428). 

Pyle  &  Sons  v.  E.  T.  V.  &  G.  E.  Co.  (1  I.  C.  C.,  465). 

Bice  v.  L.  &  N.  B.  Co.  (1  I.  C.  C.,  503). 

Be  Underbilling  (1  I.  C.  C.,  633). 

Heck  &  Petree  v.  E.  T.  V.  &  G.  E.  Co.  (1  I.  C.  C.,  495). 

Martin  v.  S.  P.  E.  Co.  (2  L  C.  C.,  1). 

Martin  v.  C.  B.  &  Q.  E.  Co.  (2  I.  C.  C.,  25). 

Scofield  v.  L.  S.  &  M.  S.  E.  Co.  (2  L  C.  C.,  90). 

Hurlburt  v.  L.  S.  &  M.  S.  E.  Co.  (2  I.  C.  C.,  122). 

Hurlburt  v.  P.  E.  Co.  (2  I.  C.  C.,  130). 

Lincoln  Board  Trade  v.  B.  &  M.  E.  E.  Co.  (2  I.  C.  C.,  147). 

Lincoln  Board  Trade  v.  M.  P.  E.  Co.  (2  I.  C.  C.,  155). 

Howell  v.  N.  Y.  L.  E.  &  W.  E.  Co.  (2  I.  C.  C.,  272). 

Griff ee  v.  B.  &  M.  B.  E.  Co.  (2  I.  C.  C.,  301). 

Detroit  Board  Trade  v.  G.  T.  E.  Co.  (2  I.  C.  C.,  315). 

Be  Tariffs  of  Transcontinental  Lines  (2  I.  C.  C.,  324). 

Slater  v.  N.  P.  E.  Co.  (2  I.  C.  C.,  359). 

2d  Ann.  Eept.  I.  C.  C.,  443. 

Bend  v.  C.  &  N.  W.  E.  Co.  (2  I.  C.  C.,  540). 

Ee  Petition  Produce  Ex.  of  Toledo  (2  I.  C.  C.,  588). 


INTERPRETATION  AND   CONSTRUCTION  77 

Michigan  Congress  Water  Co.  v.  C.  &  G.  T.  K.  Co.  (2  I.  C.  C.,  594). 

Logan  v.  C.  &  N.  W.  E.  Co.  (2  I.  C.  C.,  604). 

Imperial  Coal  Co.  v.  P.  &  L.  E.  E.  Co.  (2  I.  C.  C.,  618). 

Heard  v.  Ga.  E.  Co.  (3  I.  C.  C.,  111). 

Ee  Tariffs  and  Classifications  of  A.  &  W.  P.  E.  Co.  (3  I.  C.  C.,  19). 

N.  Y.  Produce  Ex.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  137). 

James  &  Abbott  v.  E.  T.  V.  &  G.  E.  Co.  (3  I.  C.  C.,  225). 

McMorran  v.  G.  T.  E.  Co.  (3  I.  C.  C.,  252). 

3d  Ann.  Eept.  I.  C.  C.,  294. 

Bates  v.  P.  E.  Co.  (3  I.  C.  C.,  435). 

Thurber  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473). 

Greene  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473). 

Leggett  &  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473). 

Alford  v.  C.  E.  I.  &  P.  E.  Co.  (3  I.  C.  C.,  519). 

N.  O.  Cotton  Ex.  v.  I.  C.  E.  Co.  (3  I.  C.  C.,  534). 

N.  O.  Cotton  Ex.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (3  I.  C.  C.,  534). 

Worcester  Excursion  Car  Co.  v.  P.  E.  Co.  (3  I.  C.  C.,  577). 

Lehmann,  Higginson  &  Co.  v.  S.  P.  E.  Co.  (4  I.  C.  C.,  1). 

Warner  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C.,  32). 

Andrews  Soap  Co.  v.  P.  C.  &  St.  L.  E.  Co.  (4  I.  C.  C.,  41). 

Ee  Alleged  Excessive  Freight  Bates  and  Charges  on  Food  Products  (4  I.  C. 
C.,  48). 

Manufacturers'  and  Jobbers'  Union  of  Mankato  v.  M.  &  St.  L.  E.  Co.  (4  I. 
C.  C.,  79). 

Proctor  &  Gamble  v.  C.  H.  &  D.  E.  Co.  (4  I.  C.  C.,  87). 

San  Bernardino  Board  Trade  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  104). 

Eice,  Eobinson  &  Witherop  v.  W.  N.  Y.  &  P.  E.  Co.  (4  I.  C.  C.,  131). 

Board  Trade  Chicago  v.  C.  &  A.  E.  Co.  (41.  C:  C.,  158). 

Poughkeepsie  Iron  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C.,  195). 

Harvard  Co.  v.  Pa.  Co.  (4  I.  C.  C.,  212). 

Eice  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  228). 

Capehart  v.  L.  &  N.  E.  Co.  (4  I.  C.  C.,  265). 

Kauffman  Milling  Co  v.  M.  P.  E.  Co.  (4  I.  C.  C.,  417). 

N.  Y.  Board  Trade  &  Transp.  v.  P.  E.  Co.  (4  I.  C.  C.,  447). 

Coxe  Bros.  &  Co.  v.  L.  V.  E.  Co.  (4  I.  C.  C.,  535). 

Squire  &  Co.  v.  M.  C.  E.  Co.  (4  I.  C.  C.,  611). 

Shamberg  v.  D.  L.  &  W.  E.  Co.  (4  I.  C.  C.,  630). 

Hamilton  &  Brown  v.  C.  E.  &  C.  E.  Co.  (4  I.  C.  C.,  686). 

James  &  Mayer  Buggy  Co.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (4  I.  C.  C.,  744). 

Macloon  v.  C.  &  N.  W.  E.  Co.  (5  I.  C.  C.,  84). 

Lincoln  Creamery  v.  U.  P.  E.  Co.  (5  I.  C.  C.,  156). 

Toledo  Produce  Ex.  v.  L.  S.  &  M.  S.  E.  Co.  (5  I.  C.  C.,  166). 

Kemble  v.  L.  S.  &  M.  S.  E.  Co.  (5  I.  C.  C.,  166). 

Eice  v.  C.  W.  &  B.  E.  Co.  (5  I.  C.  C.,  193). 

Eice  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  193). 

Eau  Claire  Board  Trade  v.  C.  M.  &  St.  P.  E.  Co.  (5  I.  C.  C.,  264). 

Anthony  Salt  Co.  v.  M.  P.  E.  Co.  (5  I.  C.  C.,  299). 

Anthony  Salt  Co.  v.  St.  L.  &  S.  F.  E.  Co.  (5  I.  C.  C.,  299). 

Matthews  v.  U.  P.  E.  Co.  (5  I.  C.  C.,  299). 

Matthews  v.  A.  T.  &  S.  F.  E.  Co.  (5  I.  C.  C.,  299). 

Barton  v.  C.  E.  I.  &  P.  E.  Co.  (5  I.  C.  C.,  299). 

E.  Com.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  Ocean  S.  S.  Co.  (5  I.  C.  C.,  324). 


78  INTERPRETATION   AND    CONSTRUCTION 

B.  Com.  of  Ga.  v.  C.  N.  O.  &.  T.  P.  B.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  W.  &  A.  E.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  8.  C.  E.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  324). 

Indpt.  Befiners'  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (5  I.  C.  C.,  415). 

Indpt.  Eefiners'  Assn.  v.  P.  E.  Co.  (5  I.  C.  C.,  415). 

Merchants'  Union  of  Spokane  Falls  v.  N.  P.  E.  Co.  (5  I.  C.  C.,  478). 

Potter  Mfg.  Co.  v.  C.  &  G.  T.  E.  Co.  (5  I.  C.  C.,  514). 

Board  Trade  Chattanooga  v.  E.  T.  V.  &  G.  E.  Co.  (5  I.  C.  C.,  546). 

Chamber  Commerce  Minneapolis  v.  G.  N.  E.  Co.  (5  L  C.  C.,  571). 

James  &  Abbot  v.  C.  P.  E.  Co.  (5  I.  C.  C.,  812). 

Bice  v.  St.  L.  S.  W.  E.  Co.  (5  I.  C.  C.,  660). 

Tecumseh  Celery  Co.  v.  C.  J.  &  M.  E.  Co.  (5  I.  C.  C.,  663). 

Alleged  Unlawful  Bates  and  Practices  (7  I.  C.  C.,  33). 

Milk  Producers'  Protective  Assn.  v.  D.  L.  &  W.  E.  Co.  (7  I.  C.  C.,  92). 

Mt.  Vernon  Milling  Co.  v.  C.  M.  &  St.  P.  E.  Co.  (7  I.  C.  C.,  194). 

Brewer  &  Hanleiter  v.  L.  &  N.  B.  Co.  (7  I.  C.  C.,  224). 

Gary  v.  E.  S.  B.  Co.  (7  I.  C.  C.,  286). 

Commercial  Club  of  Omaha  v.  C.  &  N.  W.  E.  Co.  (7  I.  C.  C.,  386). 

Montell  v.  B.  &  O.  E.  Co.  (7  I.  C.  C.,  412). 

Galloway  v.  L.  &  N.  E.  Co.  (7  I.  C.  C.,  431). 

Cattle  Eaisers'  Assn.  v.  F.  W.  &  D.  C.  B.  Co.  (7  I.  C.  C.,  513). 

Savannah  Bu.  of  Freight  v.  C.  &  S.  E.  Co.  (7  I.  C.  C.,  601). 

N.  Y.  Produce  Ex.  v.  B.  &  O.  E.  Co.  (7  I.  C.  C.,  612). 

Phillips,  Bailey  &  Co.  v.  L.  &  N.  B.  Co.  (8  I.  C.  C.,  93). 

Board  Trade  Dawson  v.  C.  of  Ga.  B.  Co.  (8  I.  C.  C.,  142). 

Ee  Export  Bates  from  Points  East  and  West  of  Miss.  Biver  (8  I.  C.  C.,  185). 

Gustin  v.  A.  T.  &  S.  F.  E.  Co.  (8  I.  C.  C.,  277). 

Be  Alleged  Violations  Act  to  Begulate  Commerce  (8  I.  C.  C.,  290). 

Chicago  Fire  Proof  Covering  Co.  v.  C.  &  N.  W.  E.  Co.  (8  I.  C.  C.,  316). 

Savannah  Bu.  of  Freight  &  Transp.  v.  L.  &  N.  E.  Co.  (8  I.  C.  C.,  377). 

Danville  v.  S.  B.  Co.  (8  I.  C.  C.,  409). 

Board  Trade  Hampton  v.  N.  C.  &  St.  L.  E.  Co.  (8  I.  C.  C.,  503). 

Penna.  Millers'  State  Assn.  v.  P.  &  E.  E.  Co.  (8  L  C.  C.,  531). 

Kindel  v.  A.  T.  &  S.  F.  E.  Co.  (8  I.  C.  C.,  608). 

Hilton  Lumber  Co.  v.  W.  &  W.  B.  Co.  (9  I.  C.  C.,  17). 

Holdzkom  v.  M.  C.  E.  Co.  (9  I.  C.  C.,  42). 

Wilmington  Tariff  Assn.  of  N.  C.  v.  C.  P.  &  Va.  E.  Co.  (9  I.  C.  C.,  118). 

Mayor  and  Council  of  Tifton,  Ga.  v.  L.  &  N.  B.  Co.  (9  I.  C.  C.,  160). 

Johnson  v.  C.  St.  P.  M.  &  O.  E.  Co.  (9  I.  C.  C.,  221). 

Shippers'  Union  of  Phoenix  v.  A.  T.  &  S.  F.  B.  Co.  (9  I.  C.  C.,  250). 

NatL  Hay  Assn.  v.  L.  S.  &  M.  S.  B.  Co.  (9  I.  C.  C.,  264). 

Business  Men's  League  of  St.  Louis  v.  A.  T.  &  S.  F.  B.  Co.  (9  I.  C.  C.,  318). 

Ulric  &  Williams  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  495). 

Mayor  and  City  Council  of  Wichita  v.  A.  T.  &  S.  F.  B.  Co.  (9  L  C.  C.,  534). 

Be  Transportation  of  Salt,  etc.  (10  L  C.  C.,  1). 

Pratt  L.  Co.  v.  Chicago  T.  &  L.  B.  Co.  (10  I.  C.  C.,  29). 

Wichita  v.  M.  P.  B.  Co.  (10  I.  C.  C.,  35). 

Central  Yellow  Pine  Assn  v.  V.  S.  &  P.  B.  Co.  (10  I.  C.  C.,  193). 

Hewins  v.  N.  Y.,  N.  H.  &  H.  B.  E.  Co.  (10  I.  C.  C.,  221). 

Glade  Coal  Co.  v.  B.  &  O.  E.  Co.  (10  I.  C.  C.,  226). 

Gardner  &  Clark  v.  S.  E.  Co.  (10  I.  C.  C.,  342). 

Paxton  Tie  Co.  v.  D.  S.  E.  Co.  (10  I.  C.  C.,  422). 


INTERPRETATION   AND    CONSTRUCTION  79 

Chicago  Live  S.  Ex.  v.  C.  G.  W.  E.  Co.  (10  I.  C.  C.,  428). 

Mershon  v.  Central  E.  Co.  (10  I.  C.  C.,  456). 

Lehman-Higginson  G.  Co.  v.  A.  T.  &  S.  F.  E.  Co.   (10  I.  C.  C.,  460). 

Duluth  Shingle  Co.  v.  D.  S.  S.  &  A.  E.  E.  Co.  (10  I.  C.  C.,  489). 

Central  Yellow  Pine  Assn.  v.  I.  C.  E,  Co.  (10  I.  C.  C.,  505). 

Eichmond  Eltr.  Co.  v.  P.  M.  B.  Co.  (10  I.  C.  C.,  629). 

Thompson  v.  P.  E.  Co.  (10  I.  C.  C.,  640). 

Eed  Eock  Fuel  Co.  v.  B.  &  O.  E.  Co.  (11  I.  C.  C.,  438). 

Goodhue  v.  C.  G.  W.  E.  Co.  (11  I.  C.  C.,  683). 

Hastings  M.  Co.  v.  C.  M.  &  St.  P.  E.  Co.  (11  I.  C.  C.,  675). 

Durham  v.  I.  C.  E.  Co.  (12  I.  C.  C.,  37). 

FACILITIES  FOR  INTERCHANGE  OF  TRAFFIC 

C.  &  A.  E.  Co.  v.  P.  E.  Co.  (1  I.  C.  C.,  86). 

C.  E.  I.  &  P.  E.  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (1  I.  C.  C.,  86). 

Ky.  &  Ind.  Bridge  Co.  v.  L.  &  N.  E.  Co.  (2  I.  C.  C.,  162). 

L.  E.  &  M.  E.  Co.  v.  E.  T.  V.  &  G.  E.  Co.  (3  I.  C.  C.,  1). 

3d  Ann.  Eept.  I.  C.  C.,  316,  395,  432. 

Worcester  Excursion  Car  Co.  v.  P.  E.  Co.  (3  I.  C.  C.,  577). 

Mattingly  v.  P.  Co.  (3  I.  C.  C.,  592). 

Ee  Application  of  F.  W.  Clark  (3  I.  C.  C.,  649). 

King  &  Co.  v.  N.  Y.  N.  H.  &  H.  E.  Co.  (4  I.  C.  C.,  251). 

Capehart  v.  L.  &  N.  E.  Co.  (4  I.  C.  C.,  265). 

4th  Ann.  Eept.  I.  C.  C.,  397. 

Coxe  Bros.  &  Co.  v.  L.  V.  E.  Co.  (4  I.  C.  C.,  535). 

N.  Y.  &  N.  E.  Co.  v.  N.  Y.  &  N.  E.  E.  Co.  (4  I.  C.  C.,  702). 

Freight  Bureau  v.  C.  N.  O.  &  T.  P.  B,  Co.  (6  I.  C.  C.,  195). 

Gary  v.  E.  S.  E.  Co.  (7  L  C.  C.,  286). 

Chicago  Fire  Proof  Covering  Co.  v.  C.  &  N.  W.  E.  Co.  (8  I.  C.  C.,  316). 

Parks  v.  C.  &  M.  V.  E.  Co.  (10  I.  C.  C.,  47). 

E.  Com.  of  Ky.  v.  L.  &  N.  E.  Co.  (10  I.  C.  C.,  173). 

Construction  of  Section  4 

LONG  AND  SHORT  HAUL  CLAUSE 

Ee  L.  &  N.  E.  Co.  (1  I.  C.  C.,  31). 

Thatcher  v.  D.  &  H.  C.  Co.  (1  I.  C.  C.,  152). 

B.  &  A.  E.  Co.  v.  B.  &  L.  E.  Co.  (1  I.  C.  C.,  158). 

Vermont  State  Grange  v.  B.  &  L.  E.  Co.  (1  I.  C.  C.,  158). 

Allen  v.  L.  N.  A.  &  C.  E.  Co.  (1  I.  C.  C.,  199). 

Harwell  v.  C.  &  W.  E.  Co.  (1  I.  C.  C.,  236). 

1st  Ann.  Eept.  I.  C.  C.,  p.  278. 

Ee  Tariffs  of  C.  &  W.  E.  Co.  (1  I.  C.  C.,  626). 

Martin  v.  S.  P.  E.  Co.  (2  I.  C.  C.,  1). 

Business  Men's  Assn.  v.  C.  St.  P.  M.  &  O.  E.  Co.  (2  I.  C.  C.,  52). 

Lincoln  Board  Trade  v.  M.  P.  E.  Co.  (2  I.  C.  C.,  155). 

Ee  C.  St.  P.  &  K.  C.  E.  Co.  (2  I.  C.  C.,  231). 

2d  Ann  Eept.  I.  C.  C.,  412. 

Ee.  Passenger  Tariffs  and  Bate  Wars  (2  I.  C.  C.,  513). 

Bend  v.  C.  &  N.  W.  E.  Co.  (2  I.  C.  C.,  540). 

Logan  v.  C.  &  N.  W.  E.  Co.  (2  I.  C.  C.,  604). 

Imperial  Coal  Co.  v.  P.  &  L.  E.  B.  Co.  (2  I.  C.  C.,  618). 

Ee  Tariffs  and  Classifications  of  A.  &  W.  P.  E.  Co.  (3  I.  C.  C.,  19). 


80  INTERPRETATION   AND   CONSTRUCTION 

James  &  Abbott  v.  E.  T.  V.  &  G.  B.  Co.  (3  I.  C.  C.,  225). 
3d  Ann.  Bept.  I.  C.  C.,  347. 

Stone  &  Garten  v.  D.  G.  H.  &  M.  B.  Co.  (3  I.  C.  C.,  613). 
Lehmann,  Higginson  &  Co.  v.  S.  P.  B.  Co.  (4  I.  C.  C.,  1). 

Re  Alleged  Excessive  Freight  Bates  and  Charges  on  Food  Products   (4  I.  C. 
C.,  77). 

San  Bernardino  Board  Trade  v.  A.  T.  &  S.  F.  B.  Co.  (4  I.  C.  C.,  104). 

Eice  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  228). 

King  &  Co.  v.  N.  Y.  N.  H.  &  H.  E.  Co.  (4  I.  C.  C.,  251). 

4th  Ann.  Bept.  I.  C.  C.,  371. 

Del.  State  Grange  v.  N.  Y.  P.  &  N.  B.  Co.  (4  I.  C.  C.,  588). 

Hamilton  &  Brown  v.  C.  E.  &  C.  E.  Co.  (4  I.  C.  C.,  686). 

James  &  Mayer  Buggy  Co.  v.  C.  N.  O.  &  T.  P.  B.  Co.  (4  I.  C.  C.,  744). 

Perry  v.  F.  C.  &  P.  E.  Co.  (5  I.  C.  C.,  97). 

Eice  v.  L.  &  N.  B.  Co.  (5  I.  C.  C.,  193). 

Baworth  v.  N.  P.  B.  Co.  (5  I.  C.  C.,  234). 

Anthony  Salt  Co.  v.  M.  P.  E.  Co.  (5  I.  C.  C.,  299). 

Anthony  Salt  Co.  v.  St.  L.  &  S.  F.  E.  Co.  (5  I.  C.  C.,  299). 

Matthews  v.  U.  P.  B.  Co.  (5  I.  C.  C.,  299). 

Matthews  v.  A.  T.  &  S.  F.  E.  Co.  (5  I.  C.  C.,  299). 

Barton  v.  C.  E.  I.  &  P.  B.  Co.  (5  I.  C.  C.,  299). 

E.  Com.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  W.  &  A.  E.  Co.  (5  I.  C.  C.,  324). 

B.  Com.  of  Ga.  v.  S.  C.  B.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  324). 

Merchants'  Union  of  Spokane  Falls  v.  N.  P.  E.  Co.  (5  I.  C.  C.,  478). 

Board  Trade  Chattanooga  v.  E.  T.  V.  &  G.  E.  Co.  (5  I.  C.  C.,  546). 

Gerke  Brewing  Co.  v.  L.  &  N.  E.  Co.  (I.  C.  C.,  596). 

Troy  Board  Trade  v.  A.  M.  B.  Co.  (6  I.  C.  C.,  1). 

Behlmer  v.  M.  &  C.  E.  Co.  (6  I.  C.  C.,  257). 

Be  Fremont,  E.  &  M.  V.  E.  Co.  (6  I.  C.  C.,  293). 

Be  C.  H.  &  D.  E.  Co.  (6  L  C.  C.,  323). 

Be  E.  W.  &  O.  E.  Co.  (6  I.  C.  C.,  328). 

Hill  v.  N.  C.  &  St.  L.  B.  Co.  (6  I.  C.  C.,  343). 

Cordele  Machine  Shop  v.  L.  &  N.  E.  Co.  (6  I.  C.  C.,  361). 

Colorado  Fuel  &  I.  Co.  v.  S.  P.  E.  Co.  (6  I.  C.  C.,  488). 

Johnston-Larimer  D.  G.  Co.  v.  A.  T.  &  S.  F.  E.  Co.  (6  I.  C.  C.,  568). 

McClelen  v.  S.  E.  Co.  (6  L  C.  C.,  588). 

Jerome  Hill  Cotton  Co.  v.  M.  K.  &  T.  E.  Co.  (6  I.  C.  C.,  601). 

Lynchburg  Board  Trade  v.  O.  D.  S.  S.  Co.  (6  L  C.  C.,  632). 

Alleged  Violations  of  Section  4,  (7  I.  C.  C.,  61). 

Milk  Producers'  Protective  Assn.  v.  D.  L.  &  W.  E.  Co.  (7  I.  C.  C.,  92). 

Brewer  &  Hanleiter  v.  L.  &  N.  E.  Co.  (7  I.  C.  C.,  224). 

Fewell  v.  E.  &  D.  E,  Co.  (7  I.  C.  C.,  354). 

Board  E.  Comrs.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (7  I.  C.  C.,  380). 

Galloway  v.  L.  &  N.  E.  Co.  (7  I.  C.  C.,  431). 

Savannah  Bu.  of  Freight  &  T.  v.  C.  &  S.  B.  Co.  (7  I.  C.  C.,  458). 

Ee  A.  T.  &  S.  F.  B.  Co.  (7  I.  C.  C.,  593). 

Dallas  Freight  Bu.  v.  T.  &  P.  E.  Co.  (8  I.  C.  C.,  33). 

Canadian  Pacific  Passenger  Rate  Differentials  (8  I.  C.  C.,  71). 

Phillips,  Bailey  &  Co.  v.  L.  &  N.  E.  Co.  (8  I.  C.  C.,  93). 

Kemble  v.  B.  &  A.  B.  Co.  (8  I.  C.  C.,  110). 


INTERPRETATION   AND    CONSTRUCTION  81 

Ee  Alleged  Unlawful  Bates  (8  I.  C.  C.,  121). 

Ee  Export  and  Domestic  Eates  on  Grain  (8  I.  C.  C.,  214). 

Ee  Alleged  Violations  Act  to  Eegulate  Commerce  (8  I.  C.  C.,  290). 

Board  E.  Comrs.  v.  A.  T.  &  S.  F.  E.  Co.  (8  I.  C.  C.,  304). 

Chicago  Fire  Proof  Covering  Co.  v.  C.  &  N.  W.  E.  Co.  (8  I.  C.  C.,  316). 

George  Tileston  Milling  Co.  v.  N.  P.  E.  Co.  (8  I.  C.  C.,  346). 

Danville  v.  S.  E.  Co.   (8  I.  C.  C.,  409). 

Gustin  v.  B.  &  M.  E.  E.  Co.  (8  I.  C.  C.,  481). 

Board  Trade  of  Hampton  v.  N.  C.  &  St.  L.  E.  Co.  (8  I.  C.  C.,  503). 

Pa.  Millers'  State  Assn.  v.  P.  &  E.  E.  Co.  (8  I.  C.  C.,  531). 

Kindel  v.  A.  T.  &  S.  F.  E.  Co.  (8  I.  C.  C.,  608). 

Hilton  Lumber  Co.  v.  W.  &  W.  E.  Co.  (9  I.  C.  C.,  17). 

Holdzkom  v.  M.  C.  E.  Co.  (9  I.  C.  C.,  42). 

Dallas  Freight  Bu.  v.  A.  &  N.  W.  E.  Co.  (9  I.  C.  C.,  68). 

Mayor  and  Council  of  Tifton,  Ga.  v.  L.  &  N.  E.  Co.  (9  I.  C.  C.,  160). 

Ulric  &  Williams  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  495). 

Mayor  and  City  Council  of  Wichita  v.  A.  T.  &  S.  F.  E.  Co.  (  9  I.  C.  C.,  534). 

Mayor  and  City  Council  of  Wichita  v.  C.  E.  I.  &  P.  E.  Co.  (9  I.  C.  C.,  569). 

S.  Marten  v.  L'.  &  N.  E.  Co.  (9  I.  C.  C.,  581). 

Kindel  v.  A.  T.  &  S.  F.  E.  Co.  (9  I.  C.  C.,  606). 

Buckeye  Buggy  Co.  v.  C.  C.  C.  &  St.  L.  E.  Co.  (9  I.  C.  C.,  620). 

Chamber  of  Commerce  v.  S.  E.  Co.  (10  I.  C.  C.,  111). 

Gardner  &  Clark  v.  S.  E.  Co.  (10  I.  C.  C.,  342). 

Wrigley  v.  C.  C.  C.  &  St.  L.  E.  Co.  (10  I.  C.  C.,  412). 

Lehman-Higginson  G.  Co.  v.  A.  T.  &  S.  F.  E.  Co.  (10  I.  C.  C.,  460). 

Eock  Hill  Buggy  Co.  v.  S.  E.  Co.  (11  I.  C.  C.,  229). 

Farrar  v.  S.  E.  Co.  (11  I.  C.  C.,  640). 

Hastings  M.  Co.  v.  C.  M.  &  St.  P.  E.  Co.  (11  I.  C.  C.,  675). 

Goodhue  v.  C.  G.  W.  E.  Co.  (11  I.  C.  C.  683). 

Durham  v.  I.  C.  E.  Co.  (12  I.  C.  C.,  37). 

Commercial,  etc.  Assn.  v.  L.  &  N.  E.  Co.  (12  I.  C.  C.,  372). 

Mo.  &  Kans.  S.  Assn.  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.,  483). 

Construction  of  Section  5 

POOLING   OF    FREIGHTS    AND    DIVISION    OF    EARNINGS 

3d  Ann.  Eept.  I.  C.  C.,  384. 

Indpt.  Eefiners'  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (5  I.  C.  C.,  415). 

Indpt.  Eefiners'  Assn.  v.  P.  E.  Co.  (5  I.  C.  C.,  415). 

Duncan  v.  A.  T.  &  S.  F.  E.  Co.  (6  I.  C.  C.,  85). 

Freight  Bu.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (6  L  C.  C.,  195). 

Ee  Transportation  of  Immigrants   (10  I.  C.  C.,  13). 

Consolidated  Forwarding  Co.  v.  S.  P.  E.  Co.  (10  L  C.  C.,  590). 

Construction  of  Section  6 

FILING  AND  PUBLICATION  OF  SCHEDULES 

Ee  Publication  of  Joint  Tariffs  (1  I.  C.  C.,  6). 

Ee  Joint  Tariffs  and  Schedules  (1  I.  C.  C.,  225). 

1st  Ann.  Eept.  I.  C.  C.,  292. 

Eice  v.  L.  &  N.  E.  Co.  (1  I.  C.  C.,  503). 

Ee  Filing  of  Joint  Tariffs  (1  I.  C.  C.,  657). 

Ee  Publication  of  Export  Tariffs  (1  I.  C.  C.,  658). 

Ee  Tariffs  of  Transcontinental  Lines  (2  I.  C.  C.,  324). 


82  INTERPRETATION   AND    CONSTRUCTION 

2d  Ann.  Eept.  I.  C.  C.,  420. 

Ke  Passenger  Tariffs  and  Bate  Wars  (2  I.  C.  C.,  513). 

Be  Passenger  Tariffs  (2  I.  C.  C.,  649). 

Ee  Joint  Tariffs,  Circular  (2  I.  C.  C.,  656). 

Ee  Tariffs  and  Classifications  of  A.  &  W.  P.  E.  Co.  (3  I.  C.  C.,  19). 

Ee  Acts  and  Doings  of  G.  T.  E.  Co.  (3  I.  C.  C.,  89). 

N.  Y.  Produce  Ex.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  137). 

3d  Ann.  Eept.  I.  C.  C.,  pp.  295,  319,  374. 

C.  E.  I.  &  P.  E.  Co.  v.  C.  &  A.  E.  Co.  (3  I.  C.  C.,  450). 

P.  C.  &  St.  L.  E.  Co.  v.  B.  &  O.  E.  Co.  (3  I.  C.  C.,  465). 

Mattingly  v.  P.  Co.  (3  I.  C.  C.,  592). 

Stone  &  Carten  v.  D.  G.  H.  &  M.  E.  Co.  (3  I.  C.  C.,  613). 

Elvey  v.  I.  C.  E.  Co.  (3  I.  C.  C.,  652). 

Lehmann,  Higginson  &  Co.  v.  S.  P.  E.  Co.  (4  I.  C.  C.,  27). 

San  Bernardino  Board  Trade  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  104). 

N.  Y.  Board  Trade  &  Transp.  v.  P.  E.  Co.  (4  I.  C.  C.,  447). 

Shamberg  v.  D.  L.  &  W.  E.  Co.  (4  L  C.  C.,  630). 

Boston  Fruit  &  Produce  Ex.  v.  N.  Y.  &  N.  E.  E.  Co.  (4  I.  C.  C.,  664). 

Hamilton  &  Brown  v.  C.  E.  &  C.  E.  Co.  (4  I.  C.  C.,  686). 

N.  O.  Cotton  Ex.  v.  L.  N.  O.  &  T.  E.  Co.  (4  I.  C.  C.,  694). 

E.  Com.  of  Fla.  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  13). 

Lehmann,  Higginson  &  Co.  v.  T.  &  P.  E.  Co.  (5  I.  C.  C.,  44). 

Ee  Transportation  of  Coal  by  L.  &  N.  E.  Co.  (5  I.  C.  C.,  466). 

Phelps  v.  T.  &  P.  E.  Co.  (6  I.  C.  C.,  36). 

Alleged  Unlawful  Bates  and  Practices  (71.  C.  C.,  33). 

N.  Y.  &  H.  E.  E.  Co.  v.  Platt  (7  I.  C.  C.,  323). 

Kemble  v.  B.  &  A.  E.  Co.  (8  I.  C.  C.,  110). 

Ee  Export  Bates  from  Points  East  and  West  of  Miss.  Eiver  (8  I.  C.  C.,  185). 

Be  Export  and  Domestic  Bates  on  Grain  (8  I.  C.  C.,  214). 

Chicago  Fire  Proof  Covering  Co.  v.  C.  &  N.  W.  E.  Co.  (8  I.  C.  C.,  316). 

Spillers  &  Co.  v.  L.  &  N.  E.  Co.  (8  I.  C.  C.,  364). 

Consol  Forwarding  Co.  v.  S.  P.  E.  (9  I.  C.  C.,  182). 

Southern  CaL  Fruit  Ex.  v.  S.  P.  E.  Co.  (9  L  C.  C.,  182). 

Johnson  v.  C.  St.  P.  M.  &  O.  E.  Co.  (9  I.  C.  C.,  221). 

Ee  Bates  and  Practices  of  M.  &  O.  E.  Co.  (9  I.  C.  C.,  373). 

In  the  Matter  of  Proposed  Advances  in  Freight  Bates  (9  I.  C.  C.,  382). 

Davis  v.  P.  M.  E.  Co.  (10  I.  C.  C.,  405). 

Paxton  Tie  Co.  v.  D.  S.  E.  Co.  (10  I.  C.  C.,  422). 

Ee  Transportation  of  Coal  &  Mine  Supplies  (10  I.  C.  C.,  473). 

Wylie  v.  N.  P.  E.  Co.  (11  I.  C.  C.,  145). 

Construction  of  Section  7 

CONTINUOUS   CARRIAGE  OF  FREIGHTS 

Ky.  &  Ind.  B.  Co.  v.  L.  &  N.  E.  Co.  (2  L  C.  C.,  162). 

Ee  Acts  and  Doings  of  G.  T.  B.  Co.  (3  I.  C.  C.,  89). 

C.  E.  I.  &  P.  E.  Co.  v.  C.  &  A.  E.  Co.  (3  I.  C.  C.,  450). 

Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  E.  Co.  (4  I.  C.  C.,  664). 

Troy  Board  Trade  v.  A.  M.  E.  Co.  (6  I.  C.  C.,  1). 

E.  Com.  of  Ky.  v.  L.  &  N.  E,  Co.  (10  I.  C.  C.,  173). 

Hope  Cotton  Oil  Co.  v.  T.  &  P.  E.  Co.  (10  I.  C.  C.,  696). 

Construction  of  Section  8 
CounciU  v.  W.  &  A.  E.  Co.  (1  I.  C.  C.,  339). 


INTERPRETATION   AND   CONSTRUCTION  83 

Macloon  v.  C.  &  N.  W.  E.  Co.  (5  I.  C.  C.,  84). 
Freight  Bureau  v.  C.  N.  O.  &  T.  P.  E.  Co.  (6  I.  C.  C.,  195). 
Indpt.  Eefiners'  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (6  I.  C.  C.,  378). 
Cattle  Eaisers'  Assn.  v.  C.  B.  &  Q.  E.  Co.  (10  I.  C.  C.,  83). 
Davis  v.  P.  M.  E.  Co.  (10  I.  C.  C.,  405). 

Construction  of  Section  9 

Bishop  v.  Duval,  receiver  (3  I.  C.  C.,  128). 

Harris  v.  Duval,  receiver  (3  I.  C.  C.,  128). 

Macloon  v.  C.  &  N.  W.  E.  Co.  (5  I.  C.  C.,  84). 

Gallogly  &  Firestine  v.  C.  H.  &  D.  E.  Co.  (11  I.  C.  C.,  1). 

Construction  of  Sections  12,  13,  14,  and  15 

1st  Ann.  Eept.  I.  C.  C.,  295. 
Councill  v.  W.  &  A.  E.  Co.  (1  I.  C.  C.,  339). 
Heck  &  Petree  v.  E.  T.  V.  &  G.  E.  Co.  (1  I.  C.  C.,  495). 
Eiddle,  Dean  &  Co.  v.  N.  Y.  L.  E.  &  W.  E.  Co.  (1  I.  C.  C.,  594). 
2d  Ann.  Eept.  I.  C.  C.,  408. 

Ee  Tariffs  and  Classifications  of  A.  &  W.  P.  E.  Co.  (3  I.  C.  C.,  19). 
Ee  Acts  and  Doings  of  G.  T.  E.  Co.  (3  I.  C.  C.,  89). 
Sanger  v.  S.  P.  E.  Co.  (3  I.  C.  C.,  134). 
Eice  v.  C.  W.  &  B.  E.  Co.  (3  I.  C.  C.,  186). 
Eice  v.  L.  &  N.  E.  Co.  (3  I.  C.  C.,  186). 

Eawson  v.  Newport  News  &  Miss.  Valley  Co.  (3  I.  C.  C.,  266). 
White  v.  M.  C.  E.  Co.  (3  I.  C.  C.,  281). 
3d  Ann.  Eept.  I.  C.  C.,  292,  432. 

Ee  Alleged  Excessive  Freight  Bates  and  Charges  on  Food  Products   (4  I.  C. 
C.,  62). 

McMillan  &  Co.  v.  Western  Classification  Committee  (4  I.  C.  C.,  276). 
Bates  v.  P.  E.  Co.  (4  I.  C.  C.,  281). 
Haddock  v.  D.  L.  &  W.  E.  Co.  (4  I.  C.  C.,  296). 
4th  Ann.  Eept.  I.  C.  C.,  337. 

Coxe  Bros.  &  Co.  v.  L.  V.  E.  Co.  (41.  C.  C.,  535). 
Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  E.  Co  (4  I.  C.  C.,  664). 
E.  Com.  of  Fla.  v.  S.  F.  &  W.  E.  Co.  (5  L  C.  C.,  13). 
Perry  v.  F.  C.  &  P.  E.  Co.  (5  I.  C.  C.,  97). 
Eising  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  120). 
Macloon  v.  C.  &  N.  W.  E.  Co.  (5  I.  C.  C.,  84). 
E.  Com.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 
E.  Com.  of  Ga.  v.  Ocean  S.  S.  Co.  (5  I.  C.  C.,  324). 
E.  Com.  of  Ga.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (5  I.  C.  C.,  324). 
E.  Com.  of  Ga.  v.  W.  &  A.  E.  Co.  (5  I.  C.  C.,  324). 
E.  Com.  of  Ga.  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  324). 
E.  Com.  of  Ga.  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  324). 
James  &  Abbot  v.  C.  P.  E.  Co.  (5  I.  C.  C.,  612). 
Tecumseh  Celery  Co.  v.  C.  J.  &  M.  E.  Co.  (5  I.  C.  C.,  663). 
Cattle  Eaisers'  Assn.  v.  F.  W.  &  D.  C.  E.  Co.  (7  I.  C.  C.,  513). 
Chicago  Live  S.  Ex.  v.  C.  G.  W.  E.  Co.  (10  I.  C.  C.,  428). 

Construction  of  Section  15  (new). 

Cattle  Eaisers'  Assn.  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.  1). 
Bail  &  E.  Coal  Co.  v.  B.  &  O.  E.  Co.  (14  I.  C.  C.,  86). 
Eomona  Oolithic  Stone  Co.  v.  V.  E.  Co.  (13  L  C.  C.,  115). 


84  INTERPRETATION   AND    CONSTRUCTION 

Construction  of  Section  16 
Be  Alleged  Excessive  Freight  Eates  and  Charges  on  Food  Products   (4  I.  C. 

a,  lie). 

Indpt.  Refiners'  Assn.  v.  P.  E.  Co.  (6  I.  C.  C.,  449). 

Construction  of  Section  17 

San  Bernardino  Board  Trade  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  104). 
Re  Investigation  of  Alleged  Excessive  Freight  Rates  and   Charges  on   Food 
Products  (4  I.  C.  C.,  116). 

Poughkeepsie  Iron  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C.,  195). 

Eice  v.  A.  T.  &  8.  F.  E.  Co.  (4  I.  C.  C.,  228). 

King  &  Co.  v.  N.  Y.  N.  H.  &  H.  E.  Co.  (4  I.  C.  C.,  251). 

Capehart  v.  L.  &  N.  E.  Co.  (4  I.  C.  C.,  265). 

McMillan  &  Co.  v.  Western  Classification  Committee  (4  I.  C.  C.,  276). 

Bates  v.  P.  R.  Co.  (4  I.  C.  C.,  281). 

Haddock  v.  D.  L.  &  W.  R.  Co.  (4  I.  C.  C.,  296). 

Proctor  &  Gamble  v.  C.  H.  &  D.  R.  Co.  (4  I.  C.  C.,  443). 

N.  Y.  Board  Trade  &  Transportation  v.  P.  R.  Co.  (4  I.  C.  C.,  447). 

Delaware  State  Grange,  etc  v.  N.  Y.  P.  &  N.  R.  Co.  (4  I.  C.  C.,  588). 

Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  R.  Co.  (4  L  C.  C.,  664). 

Hamilton  &  Brown  v.  C.  R.  &  C.  R.  Co.  (4  I.  C.  C.,  686). 

N.  O.  Cotton  Ex.  v.  L.  N.  O.  &  T.  R.  Co.  (4  I.  C.  C.,  694). 

Toledo  Produce  Ex.  v.  L.  S.  &  M.  S.  R.  Co.  (5  I.  C.  C.,  166). 

Kemble  v.  L.  S.  &  M.  S.  R.  Co.  (5  I.  C.  C.,  166). 

R.  Com.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 

R.  Com.  of  Ga.  v.  Ocean  S.  S.  Co.  (5  I.  C.  C.,  324). 

R.  Com.  of  Ga.  v.  C.  N.  O.  &  T.  P.  R.  Co.  (5  I.  C.  C.,  324). 

R.  Com.  of  Ga.  v.  G.  &  W.  A.  R.  Co.  (5  I.  C.  C.,  324). 

E.  Com.  of  Ga.  v.  S.  C.  R.  Co.  (5  L  C.  C.,  324). 

R.  Com.  of  Ga.  v.  L.  &  N.  E.  Co.  (5  L  C.  C.,  324). 

Eice  v.  St.  L.  S.  W.  E.  Co.  (5  I.  C.  C.,  660). 

Tecumseh  Celery  Co.  v.  C.  J.  &  M.  E.  Co.  (5  I.  C.  C.,  663). 

Construction  of  Section  20 
1st  Ann.  Eept.  I.  C.  C.,  301. 
2d  Ann.  Eept.  I.  C.  C.;  490. 

Construction  of  Section  22 
Ee  Indian  Supplies  (1  I.  C.  C.,  15). 

Ee  U.  S.  Commission  of  Fish  &  Fisheries  (1  I.  C.  C.,  21). 
Ee  Disabled  Soldiers  and  Sailors  (1  I.  C.  C.,  28). 
Larrison  v.  C.  &  G.  T.  R.  Co.   (1  I.  C.  C.,  147). 
M.  C.  R.  Co.  v.  C.  &  G.  T.  R.  Co.  (1  I.  C.  C.,  147). 

Associated  Wholesale  Grocers  of  St.  Louis  v.  M.  P.  R.  Co.  (1  I.  C.  C.,  156). 
Griff ee  v.  B.  &  M.  R.  R.  Co.  (2  I.  C.  C.,  301). 
Re  Passenger  Tariffs  (2  I.  C.  C.,  649). 
Rawson  v.  N.  N.  &  M.  V.  Co.  (3  I.  C.  C.,  266). 
3d  Ann.  Rept.  I.  C.  C.,  302,  433. 

P.  C.  &  St.  L.  R.  Co.  v.  B.  &  O.  R.  Co.  (3  I.  C.  C.,  465). 

Matter  of  Carriage  of  Persons  Free  or  at  Reduced  Rates  by  B.  &  M.  R.  Co. 
(5  I.  C.  C.,  69). 

Harvey  v.  L.  N.  R.  Co.  (5  I.  C.  C.,  153). 
Cator  v.  S.  P.  R.  Co.  (6  I.  C.  C.,  113). 
Sprigg  v.  B.  &  O.  R.  Co.  (8  I.  C.  C.,  443). 


INTERPKETATION   AND    CONSTRUCTION  85 

Sec.  67.  The  subjects  contained  in  the  administrative  rulings  and 
opinions. — Since  the  passage  of  the  act  of  June  29,  1906,  the  Commis- 
sion has  from  time  to  time  made  various  administrative  rulings,  most 
of  which  relate  to  the  construction,  application  and  interpretation  of 
the  law;  these  rulings  are  to  be  found  in  Tariff  Circular  No.  15-A, 
effective  April  15,  1908,  No.  16-A,  effective  August  1,  1908,  and  in  the 
conference  rulings  of  the  Commission,  Bulletin  No.  1,  issued  May  7, 
1908,  and  Bulletin  No.  2,  issued  July  9,  1908.  Additional  rulings 
are  promulgated  from  time  to  time." 

The  subjects  concerning  which  the  Interstate  Commerce  Commis- 
sion have  made  administrative  rulings  and  opinions  are: 

[Tariff  Circular  i$-A,  effective  April  15,  1908.] 

52.  Bound-trip  excursion  fares. 

53.  Round-trip  tickets  on  certificate  plan. 

54.  Changes  in  rates  or  fares. 

55.  Joint  rate  of  fare  greater  or  less  than  sum  of  locals. 

56.  Eeduction  of  joint  rate  or  fare  to  equal  sum  of  locals. 

57.  New  roads. 

58.  Bequests  for  permission  to  amend  tariffs  on  less  than  statutory  notice. 

59.  Division  of  joint  rates  or  fares.     Contracts  and  agreements  for,  must  be 

filed. 

60.  Diverting  traffic  because  of  blockades. 

61.  Equalizing  rules  or  tariffs. 

62.  Free  transportation  of  passengers  in  connection  with  shipment  of  property. 

63.  Free  passes  and  free  transportation. 

64.  Transportation  of  men  or  property  for  telegraph  companies. 

65.  Transportation  of  newspaper  employees  on  special  newspaper  trains. 

66.  Free  transportation  of  officers  or  employees  of  omnibus  or  baggage  express 

companies. 

67.  Payment  for  transportation. 

68.  Party-fare  tickets. 

69.  Transportation  of  circus  outfits. 

70.  Bouting  and  misrouting  freight. 

71.  Maximum  rates  and  fares  not  specific  rates  and  fares. 

72.  Combination  of  joint  rate  or  fare  to  common  points  and  local  rate  or  fare 

beyond. 

73.  Carriers  may  not  be  given  preferential  rates. 

74.  Beturn  of  astray  shipments. 

75.  Transportation  of  Federal  troops. 

76.  Classification  of  high  explosives. 

77.  Minimum  carloads. 

78.  Movement  of  shipments  refused  by  consignees  or  damaged  in  transit. 

79.  Correspondence  with  Commission  on  freight  and  passenger  matters. 

80.  Distribution  of  official  circulars  and  rulings. 

81.  Special  reparation  on  informal  complaints. 

82.  Refunds  and  commissions. 

83.  Responsibilities  of  carriers  under  tariffs. 

84.  Extensions  of  time  on  limited  tickets. 

15  For  the  reasons  assigned  by  the  Commission  for  making  administrative  rul- 
ings, see  sec.  13,  ante. 


86  INTERPRETATION   AND    CONSTRUCTION 

85.  Withdrawal  of  filed  tariffs  not  permitted. 

86.  Ocean  carriers — Export  and  import  tariffs. 

RULINGS  AND  OPINIONS  APPLICABLE  TO  EXPRESS  COMPANIES 
[Tariff  Circular  No.  i6-A,  effective  August  i,  1908.] 

26.  Changes  in  rates. 

27.  Joint  rate  greater  or  less  than  sum  of  locals. 

28.  Beduction  of  joint  rate  to  equal  sum  of  locals. 

29.  New  offices. 

30.  Bates  on  carload  shipments  between  points  as  to  which  no  carload  rates  are 

in  effect. 

31.  Bequests  for  permission  to  amend  tariffs  on  less  than  statutory  notice. 

32.  Division  of  joint  rates.    Contracts  and  agreements  for,  must  be  filed. 

33.  Diverting  traffic  because  of  blockades. 

34.  Free  transportation  of  passengers  in  connection  with  shipments  of  property. 

35.  Transportation  for  Government. 

36.  Payment  for  transportation. 

37.  Routing  and  misrouting. 

38.  Maximum  rates  not  specific  rates. 

39.  Carriers  may  not  be  given  preferential  rates. 

40.  Return  of  astray  shipments. 

41.  Movement  of  shipments  refused  by  consignees  or  damaged  in  transit. 

CONFERENCE  RULINGS  OP  THE  COMMISSION 
[Bulletin  No.  i,  issued  May  7,  1908.] 

1.  Passes  to  caretakers. 

2.  Tariffs  distinguishing  between  shipments  handled  by  steam  and  electrical 

power. 

3.  Collection  of  undercharges. 

4.  Bates  on  new  lines. 

5.  Free  storage  creating  distributing  point  for  private  industry. 

6.  Beconsignment  rule  will  not  be  given  retroactive  effect. 

7.  Commissions  on  import  traffic. 

8.  Demurrage  charges  resulting  from  strikes. 

9.  Free  transportation  by  carriers  for  one  another. 

10.  Statute  of  limitations. 

11.  Beduction  of  rate  when  formal  complaint  against  it  is  pending. 

12.  Tariff  that  fails  to  state  the  date  of  its  effectiveness  is  unlawful. 

13.  Tariffs  not  concurred  in  are  unlawful. 

14.  Maintenance  of  rate  reduced  after  complaint  filed. 

15.  Delivering  carrier  must  investigate  before  paying  claims. 

16.  Delivering  carrier  must  collect  undercharges. 

17.  Feeding  and  grazing  in  transit. 

18.  Free  transportation  of  dead  body  of  employee. 

19.  Expense  incurred  in  preparing  cars  for  shipments  can  not  be  paid  by  carrier 

in  the  absence  of  tariff  provision  therefor. 

20.  Special  understandings  between  shippers  and  carriers,  not  published  in  their 

tariffs,  of  no  valid  effect. 

21.  Caretakers  of  milk. 

22.  Free  carriage  of  company  material. 


INTERPRETATION   AND   CONSTRUCTION  87 

23.  Extension  of  time  on  through  passenger  tickets. 

24.  Canadian  rates. 

25.  Eefund  of  drayage  charges  caused  by  misrouting. 

26.  Use  of  intrastate  commutation  ticket  in  interstate  journey. 

27.  Excursion  ticket  invalidated  through  failure  of  carrier  to  make  connection. 

28.  Tickets  for  transportation  and  meals,  hotel  accommodations,  etc. 

29.  Quotations  from  correspondence  of  the  Commission. 

30.  Carriers'  monthly  reports  to  be  furnished  in  duplicate. 

31.  Demurrage  charges  on  astray  shipments. 

32.  Demurrage  charges. 

33.  Eeduced  transportation  for  Federal,  State,  and  municipal  governments. 

34.  Coal  used  for  steam  purposes  not  entitled  to  reduced  rates. 

35.  Use  of  State  passes  in  interstate  journeys  unlawful. 

36.  Bates  on  shipments  for  the  Federal  Government. 

37.  Passes  to  caretakers. 

38.  Reparation  on  informal  complaints. 

39.  Accrued  demurrage  charges. 

40.  Printing  of  briefs. 

41.  Division  of  proceeds  of  sale  of  shipment  to  pay  freight  charges. 

42.  Bates  on  return  movements. 

43.  Extension  of  time  on  through  passenger  tickets. 

44.  Limitations  of  passenger  tickets. 

45.  Passengers  on  freight  trains. 

46.  Reparation  on  informal  pleadings — Passenger  tickets. 

47.  Tariff  taking  effect  on  Sunday. 

48.  May  a  shipper  offset  a  claim  against  a  carrier  by  deducting  from  freight 

charges  on  shipment? 

49.  Benefit  of  reparation  orders  extends  to  all  like  shipments. 

50.  When  joint  agent  publishes  a  new  rate  between  two  points  without  cancel- 

ing the  old  rate  duly  published  by  one  of  the  carriers,  the  old  rate  on  that 
line  remains  in  effect. 

51.  The  use  of  Pullman  cars  at  stop-over  points  can  not  be  limited  to  members 

of  a  particular  club. 

52.  Bate  eastbound  can  not  be  applied  westbound  unless  so  published. 

53.  Transit  privilege  not  availed  of  can  not  be  renewed  after  the  expiration  of 

the  time  allowed  in  the  tariffs. 

54.  Demurrage  on  interstate  shipments. 

55.  Free  pass  to  railway  employee  on  leave  of  absence. 

56.  Hours  of  service  law — Street-car  companies. 

57.  Beshipping  rate  from  primary  grain  markets. 

58.  Declaring  a  false  valuation  in  violation  of  section  10. 

59.  Carriers  must  send  car  through  or  transfer  shipment  en  route. 

60.  No  refund  to  passenger  who  exceeded  stopover  limit. 

61.  Storage  charges  on  trunk  accruing  because  of  injury  to  passenger. 

[Bulletin  No.  2,  issued  July  9,  1908.] 

62.  Boats  that  are  not  common  carriers. 

63.  Servants  may  not  use  free  passes. 

64.  Absorption  of  switching  charges. 

65.  Special  rates  for  United  States,  State,  or  municipal  governments. 

66.  Joint  rates  between  a  water  and  a  rail  carrier  subjects  the  former  to  the 

provisions  of  the  act. 

67.  Handholds — Safety-appliance  law. 

68.  Adjustment  of  claims. 


88  INTERPRETATION   AND   CONSTRUCTION 

69.  Error  by  ticket  agent. 

70.  Effect  of  a  failure  in  a  new  tariff  naming  higher  rates  to  cancel  the  same 

rates  in  prior  tariff. 

71.  Different  fares  to  different  societies  unlawful. 

72.  Eeconsignment  privileges  and  rules. 

73.  Effective  date  of  tariff  filed  by  a  carrier  when  first  coming  under  the  law. 

74.  Hours-of -service  law. 

75.  Validation  of  tickets. 

76.  Eedemption  of  passenger  tickets. 

77.  Transit  privileges  not  retroactive. 

78.  Grain  doors. 

79.  "Private  side  tracks"  and  "private  cars"  defined. 

80.  Shipment  that  moved  in  under  a  former  tariff  does  not  lose  the  benefit  of 

transit  privilege  canceled  pending  the  out  movement. 

81.  Supplementing  mileage  books  by  paying  regular  local  mileage  rates. 

82.  Chartering  trains. 

83.  Blockade  by  flood. 

84.  A  commodity  rate  takes  the  commodity  out  of  the  classification. 

85.  Substituting  tonnage  at  transit  point. 

86.  Posting  tariffs  at  stations. 

87.  Transportation  for  eating  houses  operated  by  or  for  carriers. 

88.  Hours-of -service  law. 

89.  In  the  matter  of  the  use  of  tariffs  containing  long  and  short  haul  clauses, 

maxima  rules,  and  alternative  rate  of  fare  provisions. 

90.  Jurisdiction  of  act  over  local  belt  or  switching  lines. 

91.  Misrouting  via  line  that  has  no  tariff  on  file. 

92.  A  much  longer  and  more  indirect  route  not  a  reasonable  route. 

93.  Use  of  passes  by  servants. 

94.  Misrouting  involving  carriers  not  subject  to  the  act. 

95.  Leasing  carrier's  property  in  consideration  of  lessee's  shipments. 

96.  Notice  as  to  the  issuance  of  passes. 

SUPPLEMENTAL   ADMINISTRATIVE  RULINGS  AND  OPINIONS 

Boats  that  are  not  common  carriers. 

Servants  may  not  use  free  passes. 

Absorption  of  switching  charges. 

Special  rates  for  United  States,  State,  or  municipal  governments. 

Joint  rates  between  a  water  and  a  rail  carrier  subjects  the  former  to  the 
provisions  of  the  act. 

Handholds — Safety-appliance  law. 

Adjustment  of  claims. 

Error  by  ticket  agent. 

Effect  of  a  failure  in  a  new  tariff  naming  higher  rates  to  cancel  the  same 
rates  in  prior  tariff. 

Different  fares  to  different  societies  unlawful. 

Reconsignment  privileges  and  rules. 

Effective  date  of  tariff  filed  by  a  carrier  when  first  coming  under  the  law. 

Hours-of -service  law. 

Validation  of  tickets. 

Eedemption  of  passenger  tickets. 

Transit  privileges  not  retroactive. 

Grain  doors. 

"Private  side  tracks"  and  "private  cars"  defined. 


INTERPRETATION   AND   CONSTRUCTION  89 

Shipment  that  moved  in  under  a  former  tariff  does  not  lose  the  benefit  of 
transit  privilege  canceled  pending  the  out  movement. 

Supplementing  mileage  books  by  paying  regular  local  mileage  rates. 

Chartering  trains. 

Blockade  by  flood. 

A  commodity  rate  takes  the  commodity  out  of  the  classification. 

Notice  as  to  the  issuance  of  passes. 

These  rulings  and  opinions  are  added  to  from  time  to  time  as  oc- 
casion arises. 

In  any  case  involving  the  rights  of  parties  or  the  interpretation 
and  construction  of  the  act  to  regulate  commerce  a  knowledge  of  the 
ruling  and  opinion  applying  is  important.  Not  infrequently,  partic- 
ularly in  reparation  cases,  formal  or  informal,  the  precise  point  has 
been  the  subject  of  a  decision  of  the  Commission.  As  the  administra- 
tive rulings  and  opinions  are  added  to  from  time  to  time,  one  needs  to 
be  advised  of  all  the  rulings  in  order  to  be  thoroughly  informed. 

What  weight  is  to  be  given  to  an  administrative  ruling  and  opinion, 
in  the  absence  of  other  authority,  is  difficult  to  say.  Certain  it  is, 
such  an  opinion  is  the  decision  of  the  Commission  and  is  authority 
until  it  has  been  overruled;  and  it  is  equally  certain  that  when  the 
prior  proceedings,  which  have  produced  an  opinion  of  this  nature,  be 
considered  such  opinion  ought  not  have  the  weight  of  one  rendered 
after  formal  complaint  and  investigation.  Many,  if  not  all,  admin- 
istrative rulings  and  opinions  have  resulted  from  inquiries  from  ship- 
pers and  carriers  respecting  the  position  of  the  Commission  or  its 
advice  in  a  specific  matter ;  ordinarily  there  has  been  no  investigation, 
no  lengthy  presentation  of  facts,  and  no  argument  upon  the  legal 
principles  involved.  It  should  not  be  inferred,  however,  from  what 
has  been  said,  that  these  opinions  have  been  made  hastily  or  without 
due  consideration;  the  contrary  is  the  fact.  They  deal  with  and 
apply  to  general  cases  and  can  not  be  said  to  have  the  weight  of  an 
opinion  in  a  formal  proceeding. 

Where  an  administrative  ruling  and  opinion  decides  the  matters  in- 
volved in  a  prospective  complaint  one  must  have  such  facts,  or  there 
must  be  such  equities  as  to  take  the  case  of  the  general  rule.  One 
must,  in  other  words,  be  prepared  to  so  present  the  case  as  to  show 
that  it  is  without  the  class  of  cases  covered  by  the  administrative 
opinion. 

It  may  be  that  some  of  the  administrative  rulings  and  opinions  are 
not  warranted  by  the  act  to  regulate  commerce  or  by  general  law. 
Should  one  desire  to  attack  directly  a  ruling  which  he  considers  to 
be .  erroneous  as  a  matter  of  law  he  must  be  able  to  convince  the 
Commission  thereof. 


CHAPTER"  VI 
PLEADING  AND  PEACTICE  BEFORE  THE  COMMISSION 


Sec.  68.  Election  of  forum. — One  claiming  to  be  damaged  by  reason 
of  a  violation  of  the  act  to  regulate  commerce  by  a  carrier  is,  by  sec- 
tion 9  thereof,  given  the  election  to  proceed  before  the  Commission  or 
in  the  circuit  or  district  courts  of  the  United  States.  Several  sections 
of  the  act  impose  obligations  on  the  carriers  cognizable  by  either  of 
the  forums,  but  section  8  specifically  creates  the  liability  of  the  carrier 
and  section  9  expressly  affords  the  remedy. 

One  can  not,  however,  proceed  in  both  forums  and  an  election  is 
final. 

There  are  reasons  in  some  instances  for  choosing  the  Commission; 
in  others  the  courts  are  preferable.  Each  case  must  be  considered  sep- 
arately. In  the  courts  one  will  be  required  to  conform  to  the  strict 
rules  of  pleading  and  evidence ;  before  the  Commission  the  procedure 
is  less  formal.  In  the  courts  a  jury  trial  may  work  disadvantageously. 
The  expert  traffic  knowledge  of  the  Commission  respecting  transporta- 
tion is  of  value  in  all  cases.  A  suit  before  the  court  might  abate  when 
the  liberal  practice  of  the  Commission  respecting  substitution  or  addi- 
tion of  parties  by  amendment  would  cause  no  injury.  The  nature  and 
extent  of  the  remedy  which  each  of  the  forums  can  give  is  important ; 
in  an  appropriate  case  the  court  could  grant  an  injunction  while  the 
Commission  has  no  such  authority. 

Prior  to  the  passage  of  the  rate  law  of  1906  (act  of  June  29, 
1906,  34  Stat.  L.,  584)  there  was  no  provision  in  the  law  respecting  lim- 
itations and  the  Federal  courts  followed  the  State  statutes  in  this  be- 
half ;  under  the  present  section  16  complaints  to  the  Commission  for 
damages  must  be  filed  within  two  years  from  the  time  the  cause  of 
action  accrued.  It  seems  probable  that  this  limitation  is  not  binding 
on  the  courts  of  the  United  States  and  that  in  those  forums  the  rule 
formerly  in  use  still  applies.  The  court  is  authorized  to  fix  a  reason- 
able counsel  fee  in  the  event  of  recovery  by  the  plaintiff ;  the  Commis- 
sion does  not  award  any  fees.  To  give  the  courts  jurisdiction  it  is 
probable  (see  sec.  30,  ante),  that  the  amount  involved  must  be  $2,000. 
The  Commission  is  not  limited  as  to  the  amount  in  controversy. 

Court  costs  fall  on  one  of  the  parties;  before  the  Commission  no 
costs  are  assessed.  While  the  courts  liberally  construe  the  act,  the 


92  PLEADING  AND  PRACTICE 

Commission  is  inclined  to  be  more  liberal  than  the  judicial  bodies. 
The  usual  time  in  which  to  secure  a  determination  of  a  matter  before 
the  Commission  is  less  than  in  the  courts,1  owing  to  the  time  within 
which  the  defendant  must  reply,  the  lack  of  delay  arising  from  sub- 
sequent pleadings  or  demurrer  and  the  prompt  taking  of  testimony  by 
the  examiners  or  the  Commission. 

In  cases  seeking  damages  one  needs  to  consider  whether  or  not,  dam- 
ages being  awarded  by  the  Commission,  the  carrier  would  obey  the 
order,  for  if  the  carrier  should  resist  payment  of  the  amount  awarded 
one  is  compelled,  under  the  provisions  of  section  16,  to  proceed  in  the 
circuit  court  for  the  enforcement  thereof;  if,  however,  one  prevail  in 
a  court,  the  judgment  is,  of  course,  binding.  Prior  to  the  amending 
act  of  June  29,  1906,  the  carriers  did  not  in  many  instances  obey  the 
order  of  the  Commission  in  this  class  of  cases.  Since  the  passage  of 
that  act,  however,  the  carriers  have  in  general  paid  to  the  com- 
plainant the  amount  awarded. 

Another  matter  deserving  consideration  is  whether  or  not  upon  com- 
plaint the  defendant  will  grant  the  relief  asked  in  the  petition  with- 
out further  proceeding;  a  number  of  cases  are  annually  settled  and 
discontinued  on  account  of  relief  being  thus  granted  by  the  car- 
riers.2 

These  considerations,  and  perhaps  others,  must  be  weighed  in  each 
case  in  determining  the  selection  of  the  forum.  It  should  be  kept  in 
mind,  however,  that  the  jurisdiction  of  the  Commission  and  the  courts 
is  not  always  concurrent,8  and  where  there  is  exclusive  jurisdiction,  in 
one  or  the  other  there  is  no  choice  in  which  forum  to  proceed. 

Sec.  69.  Limitation  of  actions. — Prior  to  the  amending  statute  of 
June  29,  1906,  the  act  to  regulate  commerce  contained  no  provision 
respecting  limitation  of  actions,  and  consequently  the  Commission 
and  the  courts  were  at  liberty  to  hear  and  determine  such  cases  as  they 
might  see  fit.  The  courts,  in  accordance  with  the  usual  practice,  fol- 
lowed the  State  statutes  of  limitations  (see  sec.  68,  ante},  and  while 
the  Commission  was  not  called  upon  to  pass  upon  the  question  directly, 
it  would  probably  have  entertained  a  proceeding  unless  the  complain- 
ant was  barred  by  laches. 

The  present  provision  of  the  statute  concerning  limitations  is  to  be 
found  in  section  16 : 

All  complaints  for  the  recovery  of  damages  shall  be  filed  with  the  Commission 
within  two  years  from  the  time  the  cause  of  action  accrues,  and  not  after,  and  a  pe- 
tition for  the  enforcement  of  an  order  for  the  payment  of  money  shall  be  filed  in  the 

1  Formal  complaints  must  be  prosecuted  with  diligence  (Producers  P.  Line  Co. 
v.  St.  L.  M.  &  S.  E.  Co.,  (12  I.  C.  C.,  186). 
'See  20th  Ann.  Eept.  (1906),  p.  36. 
*See  sees.  30  and  31,  ante. 


PLEADING  AND  PRACTICE  93 

circuit  court  within  one  year  from  the  date  of  the  order,  and  not  after :  Provided, 
That  claims  accrued  prior  to  the  passage  of  this  act  may  be  presented  within  one 
year.4 

It  is  manifest  that  this  provision  is  not  a  general  rule  of  limita- 
tions applicable  to  all  complaints,  but  is  intended  only  to  apply  to 
claims  seeking  reparation;  there  is  no  provision  respecting  limitation 
of  actions  having  for  their  purpose  the  changing  of  rates  or  practices 
by  the  Commission. 

Where  a  complainant  attacks  a  rate  or  practice  of  long  standing 
the  right  of  a  complainant  is  not  barred  by  laches ;  and  if  the  rate  or 
practice  is  not  enforced,  although  warranted  by  the  published  sched- 
ules the  determination  of  the  question  will  become  either  abstract  or, 
if  an  order  be  made,  it  would  be  vain  and  useless  (sec.  40,  ante}. 

In  claims  seeking  reparation  the  Commission  had  occasion  to  con- 
sider whether  or  not  any  limitation  applied  prior  to  the  passage  of 
the  amending  act  of  June  29,  1906,  in  a  case  where  the  question  of 
limitation  was  directly  raised. 

Stale  demands  will  not  be  granted : 

INSTANCE. — In  Cattle  Kaisers'  Assn.  v.  C.  B.  &  Q.  E.  Co.  (10  I.  C.  C.,  83),  the 
Commission  after  determining  that  an  association  of  cattle  shippers  was  a  proper 
party  complainant  and  that  the  complaint  in  due  form  alleged  that  its  members 
were  compelled  to  pay  an  illegal  charge  and  asked  that  the  carriers  be  ordered 
to  make  restitution,  said  respecting  the  application  of  the  statute  of  limitations: 

"The  defendants  insist  that  if  the  individual  members  of  the  Cattle  Eaisers' 
Association,  or  any  other  persons  who  have  paid  this  terminal  charge,  are  allowed 
to  recover  in  this  suit  the  amount  of  such  payments,  then  their  appearance  in  the 
case  must  be  treated  as  the  beginning  of  a  new  action  as  of  the  date  of  such  ap- 
pearance, and  that,  therefore,  a  very  considerable  part  of  such  claims  would  be 
barred  by  the  statute  of  limitations.  It  is  not  definitely  pointed  out  what  statute, 
of  limitations  would  apply  nor  within  what  time  such  claim  would  be  recoverable. 
The  complainant  meets  this  by  saying  that  at  common  law  there  was  no  limitation 
of  actions;  that  there  is  no  limitation  upon  this  right  of  action,  which  is  created 
by  a  federal  statute,  unless  imposed  by  some  other  federal  statute;  that  the  judi- 
ciary act  prescribes  the  rule  of  limitation  which  shall  be  enforced  in  the  federal 
courts,  but  that  such  act  does  not  apply  to  this  Commission  since  it  is  not  a  court; 
that  no  other  statute  fixes  a  limit  of  time  within  which  claims  like  that  under  con- 
sideration shall  be  presented  to  the  Commission,  hence  there  is  no  such  limitation. 

"It  seems  to  be  true  that  no  statute  of  limitations  existed  at  common  law;  the 
Supreme  Court  of  the  United  States  has  declared  that  but  for  the  judiciary  act 
there  would  be  no  time  limit  to  the  bringing  of  personal  actions  in  the  federal 
courts.  (Michigan  Insurance  Bank  v.  Eldred,  130  U.  S.,  693.)  The  defendants 
themselves  insist  that  this  Commission  is  not  a  court,  and  this  being  so  the  judici- 
ary act  can  not  apply  to  proceedings  before  it.  We  are  inclined  to  agree  with  the 
complainant  to  this  extent,  although  it  might  not  be  a  violent  presumption  to  say 
that  while  the  Commission  is  not  and  can  not  be  a  judicial  body  in  the  strict  sense 
of  that  term,  still  when  the  Congress  invested  it  with  its  present  duties,  when  it 

4  Claims  accruing  prior  to  the  passage  of  the  act  of  June  29,  1906,  although 
heretofore  the  subject  of  some  controversy  as  to  the  application  of  the  provision 
respecting  limitations  were  doubtless  barred  after  August  28,  1907,  being  one 
year  after  the  date  the  act  took  effect. 


94  PLEADING  AND  PRACTICE 

provided  that  suits  for  recovery  of  these  damages  might  be  prosecuted  either  be- 
fore the  court  or  before  the  Commission,  it  intended  to  provide  that  the  same  rule 
of  limitation  should  obtain  in  whichever  forum  the  suit  was  begun.  On  the  whole, 
we  do  not  think  that  the  terms  of  the  judiciary  act  in  this  respect  would  apply  to 
the  Commission;  but  does  it  follow  from  this  that  there  is  no  limitation  upon  the 
time  within  which  such  suits  shall  be  brought  before  it? 

' '  The  act  provides  that  a  party  sustaining  these  damages  may  either  bring  suit 
in  court  or  apply  to  the  Commission  at  his  election.  If  he  brings  suit  in  court  in 
the  first  instance  the  statute  of  limitations  prevailing  in  that  State  in  which  the 
suit  is  brought  applies.  On  principle  this  conclusion  must  follow  and  such  have 
been  the  adjudicated  cases.  (Copp  v.  L.  &  N.  B.  Co.,  50  Fed.,  164;  Katican  v. 
Terminal  E.  Asso.,  114  Fed.,  666.)  If,  however,  suit  is  commenced  before  the 
Commission  resulting  in  an  order,  for  the  enforcement  of  which  application  is 
made  to  that  same  court  no  statute  of  limitations  would  apply  according  to  the 
theory  of  the  complainant.  Hence,  it  must  follow  that  by  simply  varying  the  man- 
ner of  prosecuting  his  claim  a  party  may  determine  whether  the  court  giving  final 
judgment  shall  or  shall  not  apply  a  period  of  limitation. 

' '  Again,  while  it  is  true  that  there  was  no  statute  or  limitations  as  such  at  com- 
mon law,  equity  refused  to  enforce  stale  claims  and  law  courts  presumed  payment 
after  a  lapse  of  twenty  years.  While  there  may  be  no  limitation  of  actions  to-day 
except  by  statute,  such  statutes  are  universal  and  it  would  be  difficult  to  find  a 
right  of  action  which  has  not  also  some  limitation  of  the  time  within  which  suit 
for  the  enforcement  of  that  right  must  be  brought.  But  if  the  complainant  is 
right  violations  of  the  act  to  regulate  commerce  may  be  prosecuted  before  the 
Commission  without  reference  to  the  time  when  they  accrued.  While  the  failure 
to  provide  such  a  time  limit  would  not  nullify  the  statute,  no  such  construction 
should  be  accepted  unless  irresistible. 

"No  order  which  the  Commission  makes  is  of  binding  effect  unless  enforced  by 
proceedings  in  court.  It  would  neither  be  the  duty  of  the  Commission  nor  of 
profit  to  the  complainant  to  make  an  order  which  the  court  would  not  enforce.  If, 
therefore,  it  were  possible  to  ascertain  what  rule  of  limitation  the  court  would 
finally  apply  the  same  rule  should  be  followed  by  us.  It  has  already  been  noted 
that  if  suit  be  brought  in  the  first  instance  in  court  the  statute  of  that  State  in 
which  the  suit  is  pending  would  be  applicable.  Would  the  same  rule  apply  where 
the  proceeding  was  begun  before  the  Commission  I  The  cause  of  action  is  really 
the  same  in  both  cases  for  this  arises  out  of  a  breach  of  the  statute  and  not  from 
the  order  of  the  Commission. 

"Counsel  for  the  complainant  answers  that  it  is  not  the  accruing  of  a  cause  of 
action,  but  the  right  to  begin  an  action  which  puts  in  operation  the  running  of  a 
statute  of  limitations.  If  the  complainant  elects  to  proceed  before  the  Commis- 
sion he  can  not  begin  his  suit  in  court  until  the  order  of  the  Commission  has  been 
made  and  the  defendants  have  refused  to  obey  it.  Hence  in  a  suit  brought  to  en- 
force an  order  of  the  Commission  the  running  of  the  statute  dates  not  from  the 
payment  of  the  freight  money,  but  from  the  time  when  the  carrier  was  in  diso- 
bedience of  the  order  of  the  Commission. 

"If  the  service  of  the  petition  to  the  Circuit  Court  for  the  enforcement  of  the 
order  were  to  be  treated  as  the  beginning  of  that  suit  we  should  agree  with  this 
proposition,  for  otherwise  a  claimant  electing  to  proceed  before  the  Commission, 
as  by  statute  he  may,  and  beginning  such  proceeding  while  his  claim  was  yet  alive 
might  find  himself  barred  before  he  could  obtain  an  order  and  file  his  petition  for 
its  enforcement,  although  proceeding  with  all  diligence.  We  think,  however,  that 
the  suit  in  court  is  not  begun  when  the  petition  to  enforce  the  order  is  filed,  but 
rather  by  the  filing  of  the  original  petition  to  the  Commission.  While  this  Com- 


PLEADING  AND  PRACTICE  95 

mission  is  not  a  court  to  which  the  judiciary  act  applies  it  may  be  so  far  an 
adjunct  of  the  court,  so  far  a  part  of  the  scheme  by  which  these  damages  may  be 
recovered,  that  the  filing  of  the  petition  before  the  Commission  may  properly  be 
considered  a  commencement  of  the  litigation  which  finally  results  in  a  suit  before 
the  court."  And  see  section  120,  post. 

In  reparation  cases  the  filing  of  the  petition  with  the  Commission  is 
the  beginning  of  the  suit  before  the  court : 

INSTANCE. — In  Cattle  Kaisers'  Assn.  v.  C.  B.  &  Q.  B.  Co.  the  Commission, 
after  quoting  section  16  (as  in  the  former  act),  said: 

"A  consideration  of  the  above  language  shows  that  while  the  cause  of  action 
upon  which  the  suit  at  law  is  based  is  not  the  order  of  the  Commission,  and  while 
the  issue  before  the  court  is  whether  there  has  been  a  breach  of  the  act  to  regu- 
late commerce,  still  the  suit  in  court  is  a  continuation  of  the  proceedings  before 
the  Commission.  If  the  party  injured  elects  to  take  his  remedy  before  the  Com- 
mission he  must  begin  his  suit  there;  he  can  begin  it  in  no  other  way;  and  the 
subsequent  proceedings  in  court  are  a  continuation  of  the  suit  which  he  begins 
there.  Congress  had  complete  control  of  this  subject.  It  might  have  enacted  that 
the  beginning  of  proceedings  before  the  Commission  should  be  treated  as  the  be- 
ginning of  the  suit  subsequently  brought  in  the  Circuit  Court.  It  seems  to  us  the 
least  difficult  way  out  of  the  many  difficulties  besetting  the  solution  of  this  ques- 
tion to  hold  that  the  Congress  did  in  effect  so  provide,  and  that  the  filing  of  the 
petition  before  the  Commission  is  the  beginning  of  the  suit  which  is  finally  brought 
in  the  Circuit  Court  to  enforce  an  order  for  reparation  made  by  us. ' ' 

Under  the  present  statute,  the  general  principle  applying  to  statutes 
of  limitation  govern : 

INSTANCE.— In  Mo.  &  K.  S.  Assn.  v.  A.  T.  &  S.  F.  E.  Co.  (13  I.  C.  C.,  411)  the 
Commission  held  that  until  a  definite  cause  of  action  had  been  pleaded  the  statute 
of  limitation  continues  to  run.  Eeferring  generally  to  the  statute  of  limitation 
the  Commission  said: 

"In  applying  to  complaints  filed  before  it  the  limitation  thus  enacted  into  the 
act  to  regulate  commerce,  no  reason  is  perceived  why  the  Commission  should  not 
be  guided  by  the  general  principles  under  which  statutes  of  limitations  are  applied 
to  actions  brought  in  courts  of  justice.  And  the  universal  rule  in  the  courts  seems 
to  be  that,  under  a  system  of  pleading  which  permits  a  proceeding  for  damages  to 
be  instituted  by  the  filing  of  a  complaint,  the  statute  of  limitations  does  not  cease 
to  run  against  the  demand  until  a  complaint  has  been  filed  setting  up  the  claim 
with  sufficient  particularity  to  make  an  issue;  in  other  words,  until  a  definite 
cause  of  action  has  been  pleaded  there  is  nothing  to  arrest  the  running  of  the 
statute.  There  are,  moreover,  special  reasons,  under  various  sections  of  the 
amended  act,  for  holding  that  none  of  these  complaints,  as  drawn,  can  be  said  to 
set  up  a  cause  of  action  or  to  be  sufficient  to  stop  the  running  of  the  statute 
against  the  claims  of  the  individual  members  of  the  complainant  association. 
Conceding  under  the  terms  of  section  13  that  a  voluntary  association  may  attack 
an  existing  rate  on  behalf  of  its  members,  it  may  be  said,  on  general  grounds  of 
convenience,  that  such  an  association  may  also  ask  for  reparation  on  previous  ship- 
ments made  by  them  under  the  rate  attacked.  But  it  is  clear  that  no  demand  for 
damages  by  such  an  association  should  be  entertained,  now  that  a  period  of  limi- 
tation has  been  incorporated  in  the  act,  or  can  be  said  to  state  the  complaint  or 
cause  of  action  so  as  to  stop  the  running  of  the  limitation,  that  does  not  definitely 
name  the  member  or  members  on  whose  behalf  the  claim  for  reparation  is  made. 
It  is  under  the  authority  of  section  16  that  the  Commission  is  authorized  to  enter 


96  PLEADING  AND  PRACTICE 

an  order  making  an  award  of  damages.  That  section  gives  to  the  Commission  the 
power,  after  a  full  hearing  upon  a  complaint  made  and  when  it  shall  have  deter- 
mined 'that  any  party  complainant  is  entitled  to  an  award  of  damages,'  to  make 
an  order  directing  the  carrier  'to  pay  to  the  complainant'  the  sum  awarded.  In 
any  such  proceeding  there  must  therefore  be  a  party  complainant  who  is  entitled 
to  damages,  and  the  order  must  direct  the  carrier  to  pay  the  sum  awarded  'to  the 
complainant.'  It  is  clear,  then,  that  any  complaint  under  which  an  award  of  dam- 
ages is  sought  by  a  voluntary  association  of  this  kind,  which  can  make  no  claim 
on  its  own  behalf,  must  be  filed  on  behalf  of  a  definitely  named  party  in  interest. 
This  thought  is  emphasized  by  the  language  of  section  8  which  provides  that  for 
an  unlawful  act  or  omission  a  carrier  'shall  be  liable  to  the  person  or  persons  in- 
jured;') and  also  by  the  language  of  section  9,  which  provides  'that  any  person 
or  persons  claiming  to  be  damaged  *  *  *  may  either  make  complaint  to  the 
Commission  *  *  *  or  bring  suit  *  *  *  in  any  district  or  circuit  court  of 
the  United  States  *  *  *  but  such  person  or  persons  shall  not  have  the  right 
to  pursue  both  the  said  remedies.' 

"The  distinction  between  a  mere  form  of  action  and  the  essential  nature  of  a 
cause  of  action  must  not  be  overlooked.  The  form  of  action  is  usually  provided 
by  statute;  the  cause  of  action  ordinarily  arises  through  some  act  or  omission 
of  the  parties.  And  all  the  elements  fairly  necessary  to  present  the  cause  of 
action  must  be  pleaded  in  a  complaint  filed  with  the  Commission.  This  is  made 
especially  clear  by  the  language  of  section  13,  which  requires  the  Commission, 
when  a  complaint  has  been  filed,  to  forward  to  the  defendant  'a  statement  of  the 
charges  thus  made'  and  to  call  upon  it  'to  satisfy  the  complaint  or  to  answer  the 
same  in  writing  within  a  reasonable  time.'  And  therefore  unless  the  complaint 
brought  by  a  voluntary  association  definitely  names  those  of  its  members  on  whose 
behalf  reparation  is  demanded,  and  describes  the  shipments  on  which  reparation 
is  claimed  with  sufficient  particularity  to  enable  the  Commission  to  forward  a 
statement  of  the  charges  to  the  defendant  and  to  call  upon  it  to  satisfy  the  claim 
or  answer  the  same  in  writing,  it  is  clear  that  a  cause  of  action  has  not  been 
stated  in  the  form  and  manner  required  by  the  law  or  in  such  manner  as  to  stop 
the  running  of  the  period  of  limitation  provided  in  section  16.  The  defendant, 
under  section  13  of  the  act,  has  the  right,  upon  receiving  the  statement  of  the 
charges  made,  to  relieve  itself  'of  liability  to  the  complainant,  for  the  particular 
violation  of  law  thus  complained  of  by  making  'reparation  for  the  injury  alleged 
to  be  done.'  This  is  a  definite  provision  in  the  law  and  a  definite  locus  penitentiae 
which  the  defendant  has  in  order  to  determine  whether  it  will  yield  to  the  demand 
made,  under  a  proper  order  to  be  entered  by  the  Commission,  or  contest  it.  The 
lefendant  therefore  has  the  right  to  have  the  complaint  so  stated  as  to  afford 
it  the  necessary  information  to  enable  it  to  determine  whether  to  request  the 
authority  of  the  Commission  to  satisfy  the  demand  or  to  make  a  formal  answer. 
And  when  the  demand  is  made  on  behalf  of  unnamed  shippers  and  on  shipments 
that  are  not  specified  with  reasonable  particularity,  this  opportunity  is  not  open 
to  the  defendant.  Under  the  general  rules  of  pleading  and  more  clearly  under 
the  special  language  of  this  act  we  therefore  hold  that  no  complaint  by  a  volun- 
tary association  which  fails  to  name  the  actual  parties  in  interest  on  whose  be- 
half reparation  is  demanded  or  which  fails,  in  the  petition  itself  or  in  some  ex- 
hibit attached  to  it,  to  describe  with  reasonable  particularity  the  shipments  with 
respect  to  which  damages  are  claimed,  can  be  said  under  the  amended  act  to  state 
a  cause  of  action.  And  the  filing  of  such  a  complaint  can  not  stop  the  running 
of  the  period  of  limitation  provided  in  the  act,  since  no  cause  of  action,  formal 
or  informal,  is  alleged." 


PLEADING  AND  PRACTICE  97 

And  in  Nicola,  Stone  &  Myers  Co.  v.  L.  &  N.  E.  Co.  (14  I.  C.  C.,  199)  the 
Commission  said: 

"This  provision,  as  we  understand  it,  means  that  any  claim,  whether  the  cause 
of  action  upon  which  it  is  based  accrued  prior  or  subsequent  to  the  effective  date 
of  the  act,  may  be  presented  to  the  Commission  within  two  years  from  the  date  of 
the  accrual  thereof;  and  that  as  to  causes  of  action  that  accrued  prior  to  August 
28,  1906,  the  claim  may  be  presented  at  any  time  prior  to  midnight  of  August  28, 
1907,  although  such  cause  of  action  may  have  accrued  more  than  two  years  prior 
thereto.  The  intent  of  the  proviso  is,  in  our  opinion,  to  prevent  such  a  construc- 
tion of  the  preceding  part  of  this  provision  as  to  cut  off  claims  upon  previously 
accrued  causes  of  action  as  to  which  the  two  years  had  already  run,  or  so  nearly 
so  that  it  would  be  impracticable  for  the  claimants  to  present  their  claims  withi» 
such  period." 

Sec.  70.  "The  proceedings  in  a  case  before  the  Commission. — The  sev- 
eral proceedings  or  steps  in  a  case  before  the  Commission,  chrono- 
logically considered,  are: — 

First.  A  petition  is  filed  corresponding  with  the  petition  or  bill  in 
equity. 

Second.  Notice  is  issued  and  service  thereof  made  upon  the  de- 
fendant or  party  complained  of,  conforming  to  and  corresponding 
with  the  process  of  subpoena  in  courts  of  the  United  States  requiring 
defendant  to  satisfy  the  complaint  or  to  appear  and  answer  the  same. 

Third.  The  filing  of  defendant's  answer  as  in  equity,  which  makes 
up  or  forms  the  issue  or  issues. 

Fourth.  The  issuance  of  subpoenas  requiring  the  attendance  of  wit- 
nesses, or  for  the  taking  of  depositions,  upon  the  issues  made  up  by 
the  answer. 

Fifth.  The  assignment  of  a  time  and  place  for  the  hearing,  when 
and  where  the  parties  appear  in  person  or  by  attorney — witnesses  are 
sworn  and  examined,  and  arguments  are  made  orally  or  by  brief,  or 
by  both. 

Sixth.  "When  the  conclusion  is  reached  a  written  report  correspond- 
ing in  all  respects  to  an  opinion  is  delivered,  filed  and  published. 

Seventh.  The  order  of  the  Commission  is  recorded  by  its  secre- 
tary as  decrees  in  equity  are  recorded  by  clerks  of  court,  and — 

Eighth.  A  copy  of  such  order,  under  the  seal  of  the  Commission, 
issues  to  the  parties.  If  relief  is  granted  it  is  commanded  that  the  de- 
fendant obey  the  order;  if  the  petition  is  not  sustained  it  is  ordered 
that  the  proceeding  be  dismissed. 

This  mode  of  practice  certainly  conforms  in  many  respects  to  the 
regular  practice  of  courts  and  is  no  doubt  authorized  by  the  law." 

It  is  intended  that  the  procedure  before  the  Commission  shall  be 
speedy  and  not  dilatory : 

INSTANCE. — In  Eiddle,  Dean  &  Co.  v.  P.  &  L.  E.  E.  Co.  (1  I.  C.  C.,  490)  the 
Commission  said  that  the  statute  is  to  be  construed  as  dealing  with  the  substance 

8K.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (37  Fed.,  567). 


98  PLEADING  AND  PRACTICE 

of  things  and  contemplating  as  far  as  possible  methods  of  procedure  which  are 
speedy  and  which  come  at  once  to  the  very  right  of  questions  arising  in  the  inter- 
state transportation  of  persons  and  freight. 

In  re  Procedure  Concerning  Questions  of  Law  (1  I.  C.  C.,  490),  the  Commission 
held  that  diliatory  proceedings  will  be  considered  objectionable,  and  that  a  speedy 
hearing  would  be  desired  in  every  case;  and  that  all  proper  questions  would  at 
the  hearing  be  entertained,  whether  jurisdictional  or  relating  to  the  merits  of  the 
controversy. 

Sec.  71.  Pleadings  before  the  Commission. — "It  is  intended  that  all 
its  [Commission's]  proceedings  shall  be  in  the  simplest  form  con- 
sistent with  a  reasonable  degree  of  certainty.'  '  Pleadings  before  the 
Commission  consist  of  the  complaint  and  the  answer,  all  other  formal 
pleadings  being  dispensed  with. 

In  pleading,  it  is  well,  however,  to  remember  that  the  complainant 
is  declaring  and  the  defendant  defending  on  a  statute;  the  general 
rule  laid  down  by  Chitty '  for  pleading  under  a  statute  is  applicable. 

Sec.  72.  Tillies  of  pleading. — The  rules  of  pleading,  particularly 
Federal  equity  pleading,  serve  before  the  Commission;  no  tech- 
nical rules,  however,  apply.  What  the  Commission  desires  is  that  the 
complainant  should  state  such  facts  as  show  a  violation  of  the  act, 
without  evidence,  long  recitals,  or  unnecessary  matter;  that  the  de- 
fence shall  set  up  such  facts  as  deny  the  facts  in  the  complaint,  or  set 
up  such  facts  as  excuse  or  avoid  the  allleged  violation. 

The  Rules  of  Practice  (No.  Ill)8  provide:  "Complaints  must  be  by 
petition  setting  forth  briefly  the  facts  claimed  to  constitute  a  violation 
of  the  law." 

Sec.  73.  Classes  of  complaints. — Complaints  to  the  Commission  are 
either  (a)  informal,  or  (&)  formal. 

The  informal  complaint  is  made  by  a  letter  in  which  some  act  or 
omission  of  the  carrier  is  alleged  to  constitute  a  violation  of  the  act; 
such  a  complaint  receives  a  number  and  by  addressing  the  carrier 
the  Commission  seeks  to  have  the  matter  amicably  adjusted.  Failing 
in  this,  the  complaint  may  become  a  formal  one  upon  the  filing  of  a 
petition  in  due  form;  in  fact,  many  formal  complaints  arise  out  of 
the  refusal  of  the  carrier  to  correct  the  rates  and  practices  complained 
of  informally,  it  either  denying  the  facts  alleged  or  wishing  to  defend 
on  legal  grounds. 

Informal  complaints  are  of  either  of  two  kinds:  (a)  Those  seeking  a 


"Be  Procedure  in  Cases  at  Issue  (1  I.  C.  C.,  223). 

T Chitty  on  Pleading  (16  Am.  Ed.,  Vol.  1,  p.  *386)  :  "It  is  material,  however, 
in  all  cases  that  the  offence  or  act  charged  to  have  been  committed  or  omitted 
by  the  defendant,  appear  to  have  been  within  the  provision  of  the  statute,  and 
all  circumstances  necessary  to  support  the  action  must  be  alleged.  *  *  *  If, 
however,  the  necessary  matter  be  stated  in  substance  and  effect  it  will  suffice,  al- 
though the  precise  words  of  the  statute  are  not  used. ' ' 

1  Appendix 


PLEADING  AND  PRACTICE  99 

correction  of  alleged  abuses,  or  (6)  those  seeking  reparation  for  alleged 
overcharges  in  shipments. 

The  former  class  results  from  the  desire  of  the  Commission  to  ami- 
cably settle  controversies  between  shippers  and  carriers.  When  one 
takes  up  with  the  Commission  a  matter  which  he  conceives  to  be  in 
violation  of  the  law,  the  Commission  calls  the  attention  of  the  proper 
traffic  official  of  the  carrier  to  the  grievance  and  attempts  to  adjust 
the  controversy,  whether  it  be  a  matter  of  rate  or  practice. 

Informal  complaints  seeking  reparation  for  unlawful  charges  are 
very  numerous,  aggregating  500  or  more  per  year.  These  cover  re- 
quests for  refund  on  account  of  excessive  rates,  misrouting,  miscon- 
struction of  tariff,  errors  in  tariff,  charging  less  than  carload  instead  of 
minimum  carload  rates,  excessive  switching  charge,  collecting  local  in- 
stead of  joint  through  rates,  erroneous  cancellation  of  rates,  improper 
exaction  of  demurrage  charge,  and,  in  fact,  all  manner  of  claims  which 
may  be  made  against  a  carrier,  where  the  question  of  charges  for 
transportation  or  service  in  connection  therewith  is  involved. 

An  informal  complaint  seeking  reparation  and  with  definite  speci- 
fications is  a  ' '  complaint  for  the  recovery  of  damages  *  *  *  filed 
with  the  Commission"  (see  sec.  69)  and  will  prevent  the  running  of 
the  limitation  provisions  of  the  act,  if  received  within  two  years  from 
the  time  the  cause  of  action  accrues. 

The  Commission  probably  will  not  receive  and  file  complaints, 
either  formal  or  informal,  involving  "loss  and  damage"  claims  or 
claims  seeking  the  damages  where  through  an  error  a  greater  rate 
than  is  permitted  by  the  published  tariff  has  been  charged.  In  such 
cases  the  user  of  transportation  facilities  must  avail  himself  of  his 
remedy  before  the  courts. 

The  character  of  cases  of  which  the  Commission  will  take  cognizance 
by  informal  complaints,  and  the  rules  applying  thereto  are  set  forth 
in  Administrative  Eulings  and  Opinions,  Eule  81.* 

Formal  petitions  may  be  filed  against  carriers  and  others 10  subject 
to  the  act  alleging  the  violation  of  any  of  the  provisions  or  prohibi- 
tions of  the  act.  The  provisions  and  prohibitions  of  the  act  are  divis- 
ible into  two  classes:  First,  those  for  the  direct  benefit  of  the  users 
of  transportation  facilities,  such  as  that  rates  shall  be  reasonable  and 
not  unduly  discriminatory;  and  second,  those  that  are  incidental  to 
the  first,  such  as  the  provisions  respecting  the  keeping  of  accounts  and 
prohibitions  against  keeping  accounts  other  than  those  prescribed  by 
the  Commission. 

While  technically  a  complainant,  as  provided  in  section  13  of  the 
act,  would  have  a  right  to  file  a  complaint  alleging  violations  of  the 

8  See  Eule  81  of  Tariff  Circular  15-A  for  Special  Reparation  on  Informal  Com- 
plaints (Appendix). 
"See  sec.  2,  Elkins  law  (Appendix). 


100  PLEADING  AND  PRACTICE 

act  of  the  last-mentioned  class,  yet,  it  would  usually  avail  him  noth- 
ing. The  keeping  of  accounts,  or  failure  to  keep  accounts,  will  not 
ordinarily  be  of  such  moment  to  a  complainant,  certainly  if  a  shipper, 
as  will  induce  him  to  make  a  complaint  respecting  the  action  of  the 
carrier. 

As  to  the  provisions  and  prohibitions  directly  for  the  benefit  of 
the  users  of  transportation  facilities,  the  complaint  must  allege  a  vio- 
lation of  one  or  more  of  them,  and  seek  the  relief  provided  by  law  to 
be  given. 

Formal  petitions  may  make  one  or  more  of  the  following  allega- 
tions : 

1.  Violations  of  section  1  of  the  act. 

(a)  That  rates  are  unreasonable  and  unjust  per  se. 
(&)  Failure  to  make  switch  connections. 

2.  Violation  of  section  2  of  the  act  (unjust  discrimination  between 

persons) . 

3.  Violation  of  section  3  of  the  act. 

(a)  Undue  and  unreasonable  preference  or  advantage  (or 
undue  and  unreasonable  prejudice  and  disadvantage) 
to  (1)  persons,  (2)  localities,  or  (3)  particular  de- 
scription of  traffic. 

(?0  Failure  to  furnish  facilities  for  interchange  of  traffic. 

4.  Violation  of  section  4  of  the  act. 

(a)  Violation  of  long-and-short  haul  provision. 
(6)  Application  in  nature  of  an  answer  by  carrier  seeking 
relief  under  section  4. 

5.  Violation  of  section  6  of  the  act,  failure  to  post  tariffs. 

6.  Violation  of  section  7  of  the  act,  regarding  continuous  carriage. 

7.  Violation  of  the  provisions  of  section  15  of  the  act. 

(a)  As  to  regulations  and  practices  of  carriers. 

(&)  As  to  the  making  of  through  routes  and  joint  rates. 

(c)  As  to  the  just  and  reasonable  charge  to  be  paid  by  the 

carrier  for  service  performed  by  the  owner  of  the 

property  to  be  transported. 

8.  As  to  the  issuance  of  receipt  or  bill  of  lading  as  required  by  sec- 

tion 20. 

Sec.  74.  Torm  and  requisites  of  the  complaint. — The  parts  of  a  for- 
mal complaint  are  substantially  the  same  as  the  parts  of  an  original 
bill  in  equity  in  the  Federal  courts.  As  is  customary  in  that  practice, 
no  jurisdictional  clause  is  inserted  and  the  confederacy  clause  is  used 
only  in  rare  instances  but  is  made  a  part  of  the  petition  when  the  cir- 
cumstances justify  it.  The  required  allegation  that  the  defendants  are 
common  carriers  engaged  in  the  transportation  of  (passengers  or) 
property  wholly  by  the  railroad,  etc.,  following  the  language  of  sec- 


PLEADING  AND  PRACTICE  101 

tion  1  to  such  an  extent  as  may  be  necessary,  is  a  sufficient  averment 
to  give  the  Commission  jurisdiction. 

Not  infrequently  the  complainant  conceives  that  the  existing  rate, 
regulation,  or  practice  exists  because  of  an  agreement  among  the  de- 
fendants and  that  agreement  is  in  violation  of  the  Sherman  anti- 
trust law ; u  in  such  cases  an  allegation  to  that  effect  is  not  uncom- 
mon.13 The  value  of  such  an  allegation  is  doubtful  except  in  cases  in- 
volving a  rate  recently  advanced  or  where  the  complainant  desires  to 
lay  a  foundation  or  seek  information  for  proceedings  under  the  anti- 
trust law.  It  is  well  known  that  few  rates  are  competitive  but  are 
"agreed  rates"  and  proof  of  that  fact  is  not  dependent  on  specific 
allegation  in  the  complaint. 

The  parts  of  a  Formal  Petition  before  the  Interstate  Commerce 
Commission  are: 

I.     Caption. 

(a)  "Before  the  Interstate  Commerce  Commission." 

(&)     Names    of    parties,    complainants,    and    defendants,    and    docket 

number. 
II.    Address. 

"To  the  Interstate  Commerce  Commission." 

III.  Introduction. 

(a)  Description  of  complainant,  business  and  interest  in  the  proceed- 
ing. 

(6)  Description  of  defendant,  occupation  and  clause  stating  that  it  is 
subject  to  the  act  or  interested  in  the  complaint. 

IV.  Stating  part. 

(a)  Setting  up  facts  which  in  the  view  of  the  complainant  constitute  a 
violation  of  the  act  and  setting  out  the  particular  portion  or  por- 
tions of  the  act  alleged  to  be  violated. 

(6)     Effect  of  action  or  inaction  or  practice  of  the  defendant  on  com- 
plainant's business. 
V.     Charging  part. 

(a)     Concurrences  of  defendants  in  tariffs. 

(6)  Concerted  action  of  the  defendants  to  bring  about  the  existing 
rates,  practices,  etc.  (This  is  only  used  when  to  advantage  and  the 
circumstances  warrant.) 

(c)  Alleging  the  pretences  by  which  the  defendant  excuses  or  justifies 
the  rates  or  practices.  This  is  occasionally  of  value,  for  if  properly 
stated  and  the  defendant  has  no  other  defense  than  alleged,  argu- 
ment may  be  had  on  petition  and  answer. 

VI.  Prayers. 

(a)     For  service  of  complaint  and  answer. 

(6)     For  such  special  relief,  as  in  view  of  the  facts  stated  in  the  peti- 
tion and  the  act,  the  complainant  thinks  he  is  entitled. 
(c)     For  general  relief. 

VII.  Conclusion. 

(a)     Date  and  place  of  signing. 

(6)     Signature  of  complainant  and  counsel,  with  address  of  each.u 

11  An  act  to  protect  trade  and  commerce  against  unlawful  restraints  and  monop- 
olies, approved  July  2,  1890  (26  Stat.  L.,  209). 

"  For  the  relation  between  the  Commission  and  this  act,  see  section  59,  ante. 
18  Verification  of  petition  is  no  longer  required. 


102  PLEADING  AND  PRACTICE 

Sec.  75.  What  the  petition  should  contain. — The  petition  for  an 
order,  whether  or  not  praying  reparation,  "shall  briefly  state  the 
facts"  (sec.  13).  It  ought  to  contain,  of  course,  every  fact14  essen- 
tial to  the  complainant's  right  and  to  obtain  the  relief  prayed  for; 
such  facts  as  are  pleaded  ought  to  be  pleaded  with  certainty,  accuracy, 
and  precision  and  to  a  common  intent.  It  is  not  necessary  that  minute 
facts  or  collateral  circumstances  be  set  out,  but  there  is  no  objection 
to  alleging  these  facts,  if  they  will  be  of  value,  by  the  admission  of  the 
defendant,  or  assist  in  determining  the  issues  of  the  case. 

Neither  matters  of  evidence  nor  matters  of  which  the  Commission 
will  take  judicial  notice  ought  to  be  alleged. 

A  complaint  must  state  a  reasonable  ground  for  investigation." 

A  petition  may  be  so  broad  that  the  relief  prayed  for  cannot  be 
granted : 

INSTANCE. — In  Natl.  Petroleum  Assn.  v.  A.  A.  E.  Co.  (14  L  C.  C.,  272)  where 
there  were  51  defendants  and  the  complainant  challenged  the  rates  on  petroleum 
generally  in  official  classification  territory  on  the  alleged  ground  of  unreasonable 
and  undue  preference  and  the  record  did  not  indicate  which  of  the  defendants  the 
order  should  run  against  and  there  was  no  showing  upon  the  record  that  the  classi- 
fication of  petroleum  was  unduly  discriminatory,  but  the  Commission  was  asked  to 
reduce  by  one  sweeping  order  thousands  of  rates  concerning  which  no  specific  com- 
plaint had  been  made  and  no  rates  offered,  it  was  held  that  an  omnibus  complaint 
of  this  nature  should  be  dismissed. 

The  Commission  said:  "We  can  make  no  such  wholesale  order  as  is  prayed 
for  in  this  proceeding.  If  any  of  these  rates  are  excessive  or  operate  to  effect 
forbidden  discriminations,  as  may  be  the  case,  they  are  the  rates  of  one  or  more 
carriers  against  which  a  definite  and  specific  complaint  can  be  directed;  and  if 
the  showing  now  made  furnished  no  adequate  basis  for  declaring  any  particular 
rate  unlawful  or  entering  an  order  against  any  particular  defendant,  as  in  our 
opinion,  it  certainly  does  not  warrant  the  condemnation  of  all  the  rates  in  ques- 
tion and  a  sweeping  order  against  the  whole  list  of  defendants. 

"The  complaint  is  dismissed  without  prejudice,  and  an  order  will  be  entered 
accordingly. ' ' 

A  complaint  having  for  its  purpose  retaliation  does  not  commend 
itself  to  the  Commission: 

INSTANCE.— In  Slater  v.  N.  P.  R.  Co.  (2  I.  C.  C.,  359)  it  was  held  that  a  com- 
plaint made  for  the  purpose  of  retalitation  for  a  fancied  wrong  in  order  that  the 
complainant  might  get  even  with  a  carrier  for  the  revocation  of  his  pass  is  a  com- 
plaint that  does  not  commend  itself  to  the  Commission. 

"The  Rules  of  Practice  (Rule  III)  provides:  "The  name  of  the  carrier  or 
carriers  complained  against  must  be  stated  in  full,  and  the  address  of  the  peti- 
tioner, with  the  name  and  address  of  his  attorney  or  counsel,  if  any,  must  appear 
upon  the  petition."  In  Chamber  of  C.  v.  G.  N.  R.  Co.  (5  I.  C.  C.,  571)  it  was 
held  that  a  complaint  should  be  directed  against  an  aggregate  through  rate  where 
it  appeared  that  a  local  rate  is  also  a  proportion  of  the  through  rates,  which  was 
the  real  subject  of  controversy,  and  all  carriers  composing  a  through  line  are 
necessary  parties. 

"La  Crosse  M.  &  J.  Union  v.  C.  M.  &  St.  P.  R.  Co.  (1  I.  C.  C.,  629). 


PLEADING  AND  PRACTICE  103 

A  complaint  insufficiently  charging  a  violation  of  the  act  will  be 
dismissed  : 

INSTANCE. — In  White  v.  M.  C.  K.  Co.  (3  I.  C.  C.,  281),  where  a  complainant 
charged  that  the  defendant  carriers  were  subject  to  the  act  to  regulate  com- 
merce and  had  been  accustomed  to  make  dockage  from  wheat  delivered  by  a 
farmer  to  the  buyer  at  the  elevators  of  the  defendants  and  that  the  farmer 
thereby  suffered  to  the  extent  of  the  reduction  but  failed  to  allege  that  the 
wheat  was  delivered  for  interstate  transportation,  it  was  held  that  the  com- 
plaint was  insufficient  in  substance  to  show  a  violation  of  the  act  to  regulate 
commerce  and  that  the  defendants  were  entitled  to  have  it  dismissed  on  a  motion 
to  that  effect. 

If  a  complaint  attacks  the  reasonableness  of  a  rate,  either  rela- 
tively or  per  se,  custom  and  the  rules  of  the  Commission  require  that 
in  the  complaint  it  should  be  alleged  not  only  that  the  exisiting  rate 
or  rates  are  unreasonable  and  unjust,  but  what  rate  or  rates  would^ 
in  the  view  of  the  complainant,  be  reasonable  and  just. 

Sec.  76.  Form  of  allegations. — While  the  allegations  of  a  pleading 
should  be  certain,  definite,  and  precise,  yet  it  is  not  necessary  that  the 
party  pleading  should  have  absolute  knowledge  of  the  facts  to  which 
he  subscribes.  He  may  have  information  of  various  degrees.  It  may 
be  positive  and  definite  or  it  may  be  hazy  and  uncertain.  The  practice 
permits  a  statement  of  facts,  whether  the  party  pleading  have  definite 
and  positive  information,  or  whether  it  be  by  way  of  hearsay  or  be- 
lief. Formerly  when  pleadings  were  verified,  the  knowledge  of  the 
complainant  was  necessarily  more  precise,  accurate,  and  full  than 
under  the  present  practice. 

The  petition  must  be  sufficient  to  advise  the  defendant  of  the  nature 
of  the  complaint : 

INSTANCE.— In  Mo.  &  K.  S.  Assn.  v.  A.  T.  &  S.  F.  K.  Co.  (13  I.  C.  C.,  411) 
the  Commission  said:  "The  defendant  *  *  *  has  the  right  to  have  the  com- 
plaint so  stated  as  to  afford  it  the  necessary  information  to  enable  it  to  deter- 
mine whether  to  request  the  authority  of  the  Commission  to  satisfy  the  demand  or 
to  make  a  formal  answer."  While  the  Commission  was  speaking  of  a  complaint 
demanding  reparation  the  defendant  doubtless  has  the  right  to  insist  that  all  com- 
plaints shall  conform  to  the  rule  here  stated. 

General  averments  will  not  sustain  claims  for  reparation: 
INSTANCE.— In  M.  &  K.  S.  Assn.  v.  A.  T.  &  S.  F.  E.  Co.  (13  I.  C.  C.,  411) 
the  Commission  indicated  the  form  of  allegations  necessary  to  stop  the  statute  of 
limitations  running  against  reparation  claims,  and  held  that,  where  a  complaint 
by  a  voluntary  association  asking  reparation  in  general  terms,  but  did  not  name 
the  members  on  whose  behalf  it  was  filed  and  did  not  with  reasonable  particu- 
larity specify  and  describe  the  shipments,  the  filing  of  the  complaint  would  not 
stop  the  running  of  the  statute  of  limitation. 

In  Cattle  Kaisers'  Association  v.  C.  B.  &  Q.  E.  Co.  (10  I.  C.  C.,  83)  the  Com- 
mission suggested  respecting  claims  for  reparation  by  members  of  a  voluntary 
association  as  follows:  "It  would  probably  be  well  for  the  members  of  this 
association  who  seek  damages  to  file  a  claim  in  the  nature  of  an  intervening  peti- 
tion stating  that  they  are  members  of  the  association;  have  paid  the  charges  in 


104  PLEADINS  AND  PRACTICE 

question,  and  seek  to  recover  the  same  in  this  suit.  Such  statement  should  also 
be  accompanied  by  a  specification  giving  as  definitely  as  possible  the  dates  and 
amounts  paid." 

In  answers,  as  in  the  petition,  the  allegations  should  be  sufficiently 
definite  and  precise  to  advise  the  complainant  of  the  nature  of  the 
defense  and  of  the  facts  on  which  the  defendant  relies : 

INSTANCE. — In  Baworth  v.  N.  P.  E.  Co.  (5  I.  C.  C.,  234),  where  a  complaint 
had  been  made  alleging  a  violation  of  the  fourth  section  it  was  held  that  the 
carrier  must  in  the  answer  advise  the  complainants  of  the  facts  and  circumstances 
relied  upon  as  constituting  the  defenses. 

Sec.  77.  Anticipated  defenses. — Where  the  defenses  are  known  to  the 
complainant  and  he  conceives  that  such  defenses  are  not  warranted 
in  law  or  in  fact  he  may  plead  them  in  the  complaint  and  negative 
the  facts  or  deny  the  legality  of  the  defense.  The  advantage  of  such 
pleading,  if  true,  is  apparent.  "Where  the  question  is  purely  one  of 
law,  no  hearing  for  the  purpose  of  taking  evidence  is  required  and 
the  matter  resolves  itself  into  a  legal  argument  and  the  decision  of 
the  Commission  thereon.18 

Sec.  78.  Technical  terms  and  abbreviations. — The  use  of  technical 
terms  and  abbreviations 1T  in  the  pleadings  is  permitted,  if,  however, 
the  terms  or  abbreviations  are  not  in  general  use  they  should  not  be 
used  or,  if  used,  explained.  Names  of  parties,  complainant  and  de- 
fendant, should  be  in  full  and  not  abbreviated. 

In  abbreviating  the  titles  of  railroads,  custom  sanctions  the  use  of 
the  initial  letters,  except  St.  for  Saint ;  Ste.  for  Sainte ;  Ft.  for  Fort ; 
S.  W.,  N.  W.,  etc.,  for  Southwestern,  Northwestern,  etc.;  R.  R.  for 
Railroad ;  Ry.  for  Railway,  and  R.  may  be  used  for  both  railroad  and 
railway;  Co.  for  Company.  Thus,  M.  &  St.  L.  R.  R.  for  Minneapolis 
and  Saint  Louis  Railroad.  States  may  be  abbreviated,  as  St.  L.  S. 
W.  Ry.  Co.  of  Tex.,  for  Saint  Louis  Southwestern  Railway  Company 
of  Texas.  The  exception  to  the  foregoing  rule  is  the  Maine  Central 
Railroad,  the  abbreviation  for  which  is  Me.  C.  R.  R. ;  the  Michigan 
Central  Railroad  having  the  abbreviation  M.  C.  R.  R. 

Sec.  79.  Pleading  written  instruments. — In  setting  out  contracts  and 
other  documents,  not  part  of  the  files  of  the  Commission,  they  should 
be  pleaded  as  to  their  legal  effect  and  not  inserted  in  the  body  of  the 
complaint  in  haec  verba.  They  may  be  annexed  as  exhibits,  if  de- 
sired. 

Under  the  present  act  it  is  provided  in  section  6  that — 

every  common  carrier  subject  to  this    act  shall    also    file   with    said    Commission 
copies  of  all  contracts,  agreements,  or  arrangements  with  other  common  carriers 

"  As  an  example  of  pleading  an  anticipated  defense  see  Appendix,  Form  No.  11. 

17  Eef erence  is  made  to  such  technical  terms  as  are  in  common  use  in  transpor- 
tation works,  such  as  "tariff,"  "basing  points,"  "differentials,"  " arbitraries " 
and  the  like;  abbreviations  in  common  use  in  railroad  circles  are  permitted,  such 
as  "O.  E.,"  "C.  I.  F.,"  "C.  A.  F.,"  "C.  L.,"  "L.  C.  L."  and  the  like. 


PLEADING  AND  PRACTICE  105 

in  relation  to  any  traffic  affected  by  the  provisions  of  this  act  to  which  it  may  be 
a  party. 

For  contracts  required  to  be  filed  see  rule  59,  Tariff  Circular  15-A. 

If  a  party  to  a  complaint  relies  upon  such  a  contract,  agreement,  or 
arrangement  it  is  not  necessary  to  do  more  than  make  reference  to 
the  same  in  the  pleadings  in  the  usual  way. 

If  one  desire  to  set  up  a  schedule  or  tariff  which  is  on  file  in  the 
office  of  the  Commission  the  reference  M  to  it  by  number,  date  effec- 
tive, and  other  distinguishing  features  is  sufficient.  Such  instruments 
ought  not  to  be  made  a  part  of  the  complaint  and  need  not  be  annexed 
as  exhibits. 

Sec.  80.  Prayers. — The  prayers  "for  relief  to  a  petition  are  much 
like  those  to  a  bill  in  equity  but  without  the  formality  of  them ;  custom 
does  not  require  that  they  be  numbered,  although  they  may  be. 
Prayers  are  for  service  of  the  complaint,  for  hearing  and  investiga- 
tion, and  for  an  order  or  orders  commanding  the  carriers  to  cease  and 
desist  from  the  violations  of  the  act  alleged  in  the  complaint;  and  in 
appropriate  cases,  for  reparation,  for  through  routes,  for  correction 
of  practices.  Other  prayers  appropriate  to  the  relief  sought  may  be 
added  concluding  with  the  prayer  for  general  relief. 

The  prayers,  of  course,  ought  to  be  in  harmony  with  the  relief  to 
which  the  complainant  is  entitled  under  the  petition  and  in  conso- 
nance with  the  relief  which  the  Commission  is  authorized  to  grant. 
The  complainant  can  not  secure  an  order  granting  specific  relief  in 
matter  which  has  not  been  set  up  in  the  complaint  or  on  which  testi- 
mony has  not  been  introduced.  As  the  Commission  is  lenient  respect- 
ing the  subject  matter  on  which  testimony  may  be  given,  one  may 
have  relief  under  the  general  prayer  for  relief  although  there  be  no 
allegation  in  the  pleadings  to  sustain  the  violation  concerning  which 
evidence  has  been  given. 

A  prayer  for  relief  may  be  so  broad  that  the  Commission  will  not 
feel  warranted  in  granting  it.  Thus,  in  Natl.  Petroleum  Assn.  v. 
A.  A.  B.  Co.  (14  I.  C.  C.,  272)  the  Commission  held  that  it  could  not 
make  a  ' '  wholesale  order ; ' '  and  where  the  practice  was  in  general  use 
by  several  carriers  it  was  held  that  the  Commission  would  not  con- 
demn it  in  a  case  where  a  few  carriers  only  were  parties  to  the  suit 
(Commercial  Club  v.  N.  P.  R.  Co.,  13  I.  C.  C.,  288). 

18  Schedules  of  rates  filed  with  the  Commission  bear  a  tariff  number,  being  num- 
bered consecutively  for  each  carrier.  Tariffs  are  usually  referred  to  as  "A  and 
B  Railroad  Company,  tariff  No.  I.  C.  C.,  337,  being  rates  on  various  commodities 
between  points  shown  therein. ' '  Where  the  tariff  is  for  transportation  of  commodi- 
ties over  -nore  than  one  railroad  it  is  customary  to  allege  that  the  tariff  has  been 
concurred  in  by  an  intermediate  or  final  carrier  (as  the  case  may  be)  in  accord- 
ance with  law  and  rules  laid  down  by  the  Commission  then  stating  the  concur- 
rence form  and  number  as,  "Fx  2  No.  60."  The  form  of  concurrencies  is  pre- 
scribed by  the  administrative  rulings  (Tariff  Circulars  15-A;  16-A). 

"  See  forms  of  prayers  in  Appendix. 


106  PLEADINQ  AND  PRACTICE 

Prayer  asking  relief  which  the  Commission  has  no  authority  to 

grant  ought  not  be  used : 

INSTANCE.— In  La  Crosse  M.  &  J.  Union  v.  C.  M.  &  St.  P.  E.  Co.  (1  I.  C.  C., 
629)  it  was  held  that  a  prayer  in  a  petition  that  a  carrier  be  required  to  make  its 
rates  from  one  terminus  of  the  town  from  which  the  petition  proceeds  and  to 
other  towns  in  the  same  section,  and  also  from  such  terminus  to  the  petitioning 
town  and  from  thence  to  such  other  towns  on  a  uniform  and  clear  mileage  basis 
could  not  be  granted  as  the  Commission  had  no  power  to  require  the  adoption 
of  such  basis. 

Sec.  81.  Verification. — Formerly,20  both  complaint  and  answer  were 
verified  in  the  usual  equity  manner  by  the  oath  of  parties.  Now,  how- 
ever, no  verification  is  required  except  in  petitions  by  carriers  for  re- 
lief under  the  fourth  section  of  the  act  involving  the  long-and-short 
haul  provision. 

Sec.  82.  Matters  not  known  to  party  pleading  and  matters  peculiarly 
within  knowledge  of  adverse  party. — It  not  frequently  happens  that 
facts  desired  to  be  set  up  by  the  pleader  are  unknown  to  him,  and 
they  may  or  may  not  be  known  to  the  adverse  party.  The  usual  rules 
of  pleading  applicable  to  such  cases  are  safe  to  follow.  One  may  al- 
lege that  certain  facts  are  unknown  to  the  pleader  but  he  may  state 
that  he  believes  them  to  be  true,  or  he  may  set  them  out  in  part  and 
allege  that  his  adversary  has  full  and  complete  knowledge  thereof 
and  ask  a  disclosure  in  respect  thereto.  The  procedure  is  analagous 
to  a  bill  or  prayer  for  discovery  and  may  be  effective  in  the  same  way. 

Sec.  83.  Effect  of  omission  to  make  proper  allegations. — If  a  com- 
plaint be  transmitted  for  filing  and  it  does  not  state  a  cause  of  action 
under  the  statute  it  will  ordinarily  be  returned  n  with  a  letter  stating 
the  defects  and  requesting  a  redrafting  of  it  in  accordance  with  the 
act  and  the  Rules  of  Practice.  Such  delay  is  often  burdensome  to  the 
complainant  and  if  seeking  reparation  may  involve  the  limitation  pro- 
vision. 

If  the  defect  be  one  not  apparent  on  the  face  of  the  complaint,  such 
as  want  of  parties  or  failure  to  allege  all  the  violations  of  the  act 
which  the  complainant  should  set  up,  it  will  be  filed  and  served,  if 
otherwise  proper.  Even  after  answer  amendment  to  cover  these  de- 
fects may  be  permitted  or  evidence  may  be  adduced  and  received 
tending  to  show  violations  other  than  those  specified.  Amendment** 
in  a  material  particular  without  notice,  however,  will  not  be  allowed ; 
nor  will  the  amendment  stand  if  it  cause  surprise.  The  carrier  is  en- 
titled to  know  the  charge  against  it  in  order  that  it  may  prepare  to 
meet  it.  The  necessary  allegations  and  all  violations  of  the  law  pro- 
posed to  be  considered  ought  to  be  set  out  in  the  complaint. 
Sec.  84.  Conclnsiveness  of  allegations  on  party  pleading — Waiver  of 

*°Eule  IV  of  Eules  of  Practice,  as  originally  adopted  (1  I.  C.  C.,  2). 

"  In  La  Crosse  M.  &  J.  Union  v.  C.  M.  &  St.  P.  E.  Co.  (  1  I.  C.  C.,  629)  it  was 
held  that  a  complaint  would  not  be  filed  if  it  contain  no  reasonable  ground  for 
investigation. 

*  See  sec.  76,  ante. 


PLEADING  AND  PRACTICE  107 

part  of  allegations. — The  allegations  of  a  petition  or  answer  are  not 
technically  conclusive  on  the  party  pleading.  He  is  not  estopped  by 
an  allegation,  nor  is  he  ordinarily  precluded  from  changing  his  ground 
of  action  or  defense  unless  such  change  would  affect  a  surprise  to  the 
opposing  party.  A  complaint  may  have  no  allegation  to  support  a 
particular  line  of  testimony,  yet  the  evidence  is  usually  received  "for 
what  it  is  worth;"  so,  also,  a  defendant  carrier  may  have  omitted  a 
defense  in  its  answer  yet  it  is  permitted  to  adduce  evidence  in  support 
thereof  whether  the  new  defense  be  in  addition  to  or  even  in  part  in- 
consistent with  the  defense  pleaded. 

It  not  infrequently  happens  that  where  the  complainant  has  made 
numerous  allegations  he  finds  at  the  hearing  that  he  is  either  without 
evidence  to  support  some  of  them  or  that,  if  proven,  they  would  not 
constitute  a  violation  of  the  law.  In  such  cases  it  is  the  practice  for  the 
complainant  to  state  upon  the  record  that  he  does  not  propose  to 
adduce  testimony  upon,  or  make  argument  concerning  the  particular 
allegations,  thereby  waiving  his  right  to  proceed  thereunder.  Such 
was  done,  although  there  was  no  formal  complaint,  in  Re  Differential 
Freight  Rates  (11  I.  C.  C.  13)  where  at  the  request  of  commercial 
organizations  the  order  of  investigation  of  the  Commission  was  broad 
enough  to  include  the  consideration  of  differential  rates  on  all  kinds 
of  traffic  to  and  from  the  Atlantic  ports,  but  by  agreement  at  the 
opening  of  the  first  hearing  the  case  was  limited  to  export  and  im- 
port traffic. 

Sec.  85.  Amendments. — The  Commission  is  liberal  in  permitting 
amendments  to  be  made  to  the  pleadings,  but  it  will  not  permit  a 
complainant  to  make  amendments  that  would  in  effect  make  a  new 
case, a  nor  substitute  for  the  original  cause  of  complaint  something 
quite  distinct  and  different M  from  that  originally  alleged. 

Amendment  to  a  petition  creating  new  issues  will  not  be  permitted : 

INSTANCE. — In  Kiddle,  Dean  &  Co.  v.  B.  &  O.  E.  Co.  (1  I.  C.  C.,  372)  the  origi- 
nal complaint  alleged  unjust  discrimination  in  furnishing  cars  to  a  specified  coal 
mine  during  a  particular  month  for  shipment  to  the  designed  consignees;  the 
proposed  amendment  was  for  the  purpose  of  showing  unjust  discriminations  by 
the  same  defendants  against  other  mines  in  the  furnishing  of  cars  for  other  points 
and  for  different  periods  than  mentioned  in  the  original  complaint.  The  Com- 
mission said:  "This  amendment  thus  brings  forward,  for  the  first  time,  mines 
alleged  to  have  been  discriminated  against  in  shipments  to  points  nowhere  re- 
ferred to  in  the  original  complaint,  and  charges  violations  of  the  statute  against 
these  mines  and  in  these  shipments,  occurring  a  considerable  period  of  time  after 
the  original  complaint  was  filed,  and  some  of  them,  in  fact,  after  the  original 
complaint  had  been  answered  by  the  defendant  railroad  company.  The  griev- 
ances stated  in  the  amendment  are  new  and  distinct,  entirely  separate  from,  and 
having  no  relation  to,  the  grievances  mentioned  in  the  original  complaint. 

w  Delaware  State  Grange  v.  N.  Y.  P.  &  N.  K.  Co.  (2  I.  C.  C.,  309)  but  amend- 
ment  is  not  necessary  to  bring  in  matters  that  would  have  been  the  subject  of 
proof  under  the  original  complaint. 

"Biddle,  Dean  &  Co.  v.  B.  &  O.  E.  Co.  (1  I.  C.  C.,  372). 


108  PLEADING  AND  PRACTICE 

"In  considering  complaints  and  amendments,  such  as  are  made  and  proposed, 
the  Interstate  Commerce  Commission,  under  the  statute,  performs  duties  that  are 
in  their  nature  judicial.  Liberal  as  our  practice  has  heretofore  been,  and  will 
continue  to  be,  in  allowing  amendments  to  complaints  and  answers  in  proceedings 
before  us  in  the  administration  of  a  highly  remedial  statute,  yet  there  must,  under 
the  rules  of  law,  be  a  limit  to  this  power  of  amendment ;  and  this  limit,  we  think, 
would  be  passed  in  allowing  the  amendment  here  proposed.  The  alleged  griev- 
ances averred  in  this  proposed  amendment  do  not  constitute  grounds  of  com- 
plaint under  the  circumstances  proper  to  be  brought  in  by  way  of  amendment  to 
the  original  complaint  in  this  proceeding.  That  portion  of  the  proposed  amend- 
ment which  charges  that  the  defendant  company  gave  a  preference  'to  shippers 
of  coke  on  the  line  of  their  road  by  furnishing  said  coke  shippers  with  more  than 
their  proportion  of  box  cars  each  day  for  shipment  of  coke  during  the  aforesaid 
months'  is  equally  obnoxious  to  the  objection  above  stated.  The  matters  men- 
tioned in  this  proposed  amendment  may  be  subjects  for  a  new  petition  if  com- 
plainants desire  to  present  such  a  complaint,  but  not  by  way  of  amendment  to 
the  original  petition."  The  amendment  was  disallowed. 

Where  it  was  erroneously  stated  in  a  petition  that  a  receivership  had 
existed  until  a  reorganization  and  that  under  the  reorganization  G. 
was  president  and  service  was  had  on  him,  and  the  answer  was  veri- 
fied and  filed  by  P.  the  president,  amendment  was  allowed  at  the 
hearing." 

Sec.  86.  Formal  defects  in  pleadings — Scandal  and  impertinence — 
Multifariousness — Departure  and  variance. — As  none  of  the  technical 
rules  of  pleading  or  evidence  apply  in  proceedings  before  the  Com- 
mission it  will  be  unavailing  to  raise  questions  involving  a  considera- 
tion of  such  formal  defects  as  scandal,  impertinence,  multifariousness, 
departure  and  variance. 

The  Commission  has  no  general  rule  respecting  scandal  and  imper- 
tinence. In  aggravated  cases  a  motion  to  strike  out,  or  exceptions 
thereto,  would  probably  be  granted  upon  hearing. 

Ordinarily  multifariousness  is  not  objectionable,  either  in  com- 
plaint or  answer.  The  usual  practice,  when  multifariousness  occurs  in 
a  complaint,  is  for  the  defendant  to  disclaim  interest  as  to  a  part  and 
answer  as  to  those  facts  which  concern  it. 

The  better  practice  to  avoid  multifariousness  is  to  file  separate 
complaints  and  after  issue  to  apply  for  a  consolidation  M  of  cases. 

As  there  is  no  replication  "  there  can  be  no  departure.  It  not  in- 
frequently happens  that  the  evidence  is  at  variance  with  the  allega- 
tions, such  evidence  having  been  received  by  the  Commission  under  its 
powers  of  investigation;  in  such  case  relief  is  granted,  although  the 
relief  asked  in  the  moving  papers  may  not  accord  with  that  given. 

"Beynolds  v.  W.  N.  Y.  &  P.  E.  Co.  (  1  I.  C.  C.,  347). 

**  An  illustration  of  consolidation  of  cases,  with  general  opinion  and  special 
opinions,  where  warranted,  is  to  be  found  in  Haines  v.  C.  E.  I.  &  P.  E.  Co.  (13 
I.  C.  C.,  214)  ;  nine  cases  were  consolidated,  with  special  opinions  in  eight. 

17  Be  Procedure  in  Cases  at  Issue  (  1  I.  C.  C.,  223). 


PLEADING  AND  PRACTICE  109 

Cases  in  which  reparation  is  not  specifically  prayed  for  may  be  held 
open  that  complainants  may  have  opportunity  to  present  such  claims.28 

Sec.  87.  Admissions. — Parties  to  the  proceedings  are  bound  by  the 
admissions  made  in  the  pleadings  but  not  to  such  an  extent  as  is  usual 
in  courts.  The  better  practice  is  to  have  an  admission  made  verbally  at 
the  hearing  in  addition  to  the  admission  made  in  the  complaint  or  an- 
swer. An  admission  made  by  a  complainant  or  a  defendant  does  not 
bind  a  co-complainant  or  a  co-defendant ;  neither  will  an  admission  in 
one  case  bind  the  same  party  in  another  case  involving  similar  issues. 
An  admission  by  an  agent  will  bind  the  principal  but  not  if  made  prior 
to  the  institution  of  proceedings.29 

Admissions  may  occur  in  the  pleadings,  or  presumptions  in  the  na- 
ture of  admissions  may  arise  from  the  evidence. 

The  averment  of  a  defense  binds  a  carrier  and  it  is  under  a  duty 
to  introduce  evidence  thereunder. 

INSTANCE. — In  E.  Com.  v.  Clyde  Steamship  Co.  (5  I.  C.  C.,  324)  it  was  held 
that  where  a  carrier,  after  complaint  alleging  a  violation  of  the  fourth  section, 
averred  substantial  dissimilarity  in  circumstances  and  conditions  that  it  was  con- 
cluded by  its  pleading  and  must  affirmatively  show  such  circumstances  and  con- 
ditions as  will  justify  a  greater  charge  for  a  shorter  haul;  but  the  rule  is  dif- 
ferent if  an  application  be  made  by  a  carrier  for  relief  under  the  fourth  sec- 
tion (see  section  121). 

A  long-continued  rate  or  practice  may  create  a  presumption  in  the 
nature  of  an  admission  of  the  reasonableness  thereof: 

INSTANCE. — In  National  Hay  Association  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C., 
264)  it  was  held  that  where  a  defendant  had  kept  a  commodity  in  a  certain 
class  for  thirteen  years  or  more  with  the  exception  of  a  short  period  it  was  evi- 
dence that  the  classification  and  rates  were  reasonably  high  and  while  the  con- 
tinuance of  the  classification  and  rates  was  not  conclusive  evidence  of  the  reason- 
ableness thereof  it  was  in  the  nature  of  an  admission  against  the  carriers  tend- 
ing to  show  the  unreasonableness  of  an  advance. 

Sec.  88.  Exhibits — Bill  of  particulars. — It  is  permitted  to  attach  ex- 
hibits to  pleadings,  but  there  is  no  necessity  for  attaching  tariffs  or 
schedules,  mere  reference  by  name,  number,  and  date  effective  being 
sufficient. 

A  bill  of  particulars  should  be  filed  with  a  complaint  seeking  dam- 
ages, in  order  that  the  defendant  may  be  apprised  of  the  money  claim 
of  the  complainant.  The  bill  should  be  as  full  as  needed  to  inform  the 
carrier  and,  if  for  and  on  account  of  shipments,  should  contain  the 
names  of  consigner  and  consignee,  car  number  and  initial,  date  and 
place  of  shipment,  destination,  weight,  commodity,  freight  paid,  and 
amount  claimed.  The  way  bill  reference  may  be  furnished  if  avail- 

48  For  cases  held  open  for  proof  of  reparation  see  Jurisdiction  to  Determine 
Entire  Controversy  (sec.  32,  ante.) 
28  Michigan  Cong.  Water  Co.  v.  C.  &  G.  T.  E.  Co.  (2  I.  C.  C.,  594). 


110  PLEADING  AND  PRACTICE 

able.88  If  in  order  to  preserve  rights  against  the  limitation  provision 
supplemental  bills  of  particulars  may  be  filed  from  time  to  time.*1 
A  bill  of  particulars  should  be  definite  and  precise: 
INSTANCE. — In  Chesapeake  and  Ohio  Canal  Co.  v.  Knapp    (9  Pet.,  541)    the 
court  said:     "There  can  be  no  doubt  that  a  bill  of  particulars  should  be  so  spe- 
cific as  to  inform  the  defendant,  substantially,  on  what  the  plaintiff's  action  is 
founded.     This  is  the  object  of  the  bill,  and  if  it  falls  short  of  this,  its  tendency 
must  be  to  mislead  the  defendant,  rather  than  to  enlighten  him." 

The  plaintiff  at  law  will  be  confined  ordinarily  to  the  demand 
stated  in  his  bill  of  particulars  but  in  some  jurisdictions  amendment 
by  leave  of  court  is  allowed.  The  Commission  has  not  had  occasion  to 
determine  this  question  but  it  is  manifest  that  no  amendment  would 
be  permitted  the  purpose  of  which  is  to  evade  the  limitation  provision. 

Sec.  89.  Filing  of  complaint — Copies  of  complaint — Service  of  com- 
plaint.— A  formal  complaint  is  transmitted  the  Commission  in  person 
or  by  mail  with  a  request  that  it  be  filed  and  served.  It  is  examined 
by  the  Commission  in  order  to  determine  whether  it  charges  a  viola- 
tion of  the  act  and  whether  it  contains  the  proper  prayers  for  relief; 
if  it  meets  with  these  requirements  it  is  served  on  the  defendant  **  by 
registered  mail,  with  an  order  requiring  answer  thereto  within  a 
specified  time ;  this  is  usually  twenty  days  but  for  good  cause  the  Com- 
mission often  specifies  a  shorter  time. 

On  filing  and  docketing  the  complaint  it  is  given  a  number  and  the 
complainant  or  his  attorney  is  advised  of  the  receipt  of  the  complaint, 
the  docket  number  and  that  service  has  been  made. 

The  complaint  should  be  either  typewritten  or  printed,  and  at  least 
one  copy  should  be  signed  in  ink  by  the  complainant  or  his  authorized 
agent.  A  sufficient  number  of  copies  of  the  complaint  must  be  trans- 
mitted in  order  that  the  Commission  may  have  three  for  its  files  and 
one  copy  for  service  on  each  defendant. 

Sec.  90.  Time  of  filing  pleadings. — The  time  for  filing  a  petition  is,  of 
course,  within  the  discretion  of  the  complainant;  if  the  complainant 
seeks  reparation  he  will  avoid  by  early  filing  the  operation  of  the 
limitation  as  provided  in  section  16  of  the  act. 

The  time  within  which  the  defendant  shall  answer  the  petition  is 
fixed  in  the  order  requiring  an  answer;  the  time  is  usually  twenty 

80 See  Cattle  Kaisers'  Assn.  v.  C.  B.  &  Q.  E.  Co.  (10  I.  C.  C.,  83),  M.  &  K.  C. 
Shippers'  Assn.  v.  A.  T.  &  S.  F.  E.  Co.  (13  I.  C.  C.,  411),  Nicola,  Stone  & 
Myers  v.  L.  &  N.  E.  Co.  (14  I.  C.  C.,  199) 

81  In  filing  supplemental  bills  of  particulars    it    is  necessary    to    file    sufficient 
copies  for  service  upon  the  carrier  or  carriers  interested;    thus,  if  under  an  order 
of  the  Commission  a  claim  for  reparation  is  made,  at  least  two  copies  of  each 
bill  of  particulars  must  be  filed,  one  for  the  files  of  the  Commission  and  the  other 
for  service  upon  the  carrier  to  whom  the  freight  charges  were  paid. 

82  Service  on  a  controlling  company,  when  a  susbidiary  company  should  have 
been  served,  was  held  valid  in  Mayor  &  Council  of  W.  v.  A.  T.  &  S.  F.  E.  Co. 
(9  I.  C.  C.,  534). 


PLEADING  AND  PRACTICE  111 

days  but  for  cogent  reasons  the  Commission  may  require  the  answer 
in  less  time ;  and  on  application  by  the  defendant  it  may  be  extended. 
The  Rules  of  Practice  (Rule  III)  provide:  "The  complainant  must  furnish 
as  many  copies  of  the  petition  as  there  may  be  parties  complained  against  to  be 
served  and  three  additional  copies  for  the  use  of  the  Commission." 

Sec.  91.  Appearances. — Practice  before  the  Commission  does  not  re- 
quire appearance  by  the  defendant  or  his  attorney  except  as  is  inferred 
from  the  filing  of  the  answer.  No  distinction  is  made  between  general 
and  special  appearances  except  in  rare  instances  where  the  defendant 
desires  to  raise  a  jurisdictional  question  and  interposes  a  demurrer  or 
a  notice  in  the  nature  of  a  demurrer ;  such  was  the  practice  in  Cosmo- 
politan Shipping  Co.  v.  Hamburg- American  Packet  Co.  (13  I.  C. 
C.,  266). 

"When  a  case  is  at  hearing,  however,  the  appearance  of  counsel  for 
the  several  parties  is  noted  on  the  record. 

Sec.  92.  Dilatory  pleas. — The  Commission  does  not  look  with  favor 
upon  nor  countenance  the  pleading  of  dilatory  pleas.88  If  the  com- 
plaint appears  upon  its  face  to  be  a  meritorious  cause  of  action  it  has 
not  been  the  policy  of  the  Commission  to  permit  such  pleadings  as 
will  embarrass  the  complainant  or  tend  to  place  obstacles  in  the  way 
of  determining  whether  or  not  the  allegations  be  true  and  constitute 
a  violation  of  the  law.  The  reason  for  this  doubtless  is  that  if  the  law 
is  violated  and  a  number  of  individuals  and  perhaps  commodities  are 
prejudiced  the  earlier  such  a  state  of  affairs  is  rectified  the  better  it 
will  be  for  all  parties  concerned. 

All  questions  may  be  reserved  until  final  hearing : 

In  Re  Procedure  Concerning  Questions  of  Law  (1  I.  C.  C.,  224),  where  counsel 
for  defendant  without  notice  to  complainant  moved  to  dismiss  the  complaint  upon 
the  ground  that  the  matters  alleged  did  not  present  a  violation  of  the  act,  the 
Commission  declined  to  take  up  the  matter,  first,  because  notice  to  the  complain- 
ants had  not  been  given,  and  second,  because  the  object  of  the  motion  was  to 
reach  the  merits  of  the  case,  and  have  them  discussed  and  passed  upon  summarily 
instead  of  at  the  customary  final  hearing.  "It  is  the  desire  of  the  Commission 
that  the  practice  and  proceedings  in  all  cases  shall  be  in  the  simplest  form  possible 
consistent  with  justice,  and  that  without  dilatory  motions,  pleas  in  abatement,  or 
other  interlocutory  proceedings,  the  matter  in  question  be  brought  to  an  issue  at 
the  earliest  practicable  day,  when  a  final  hearing  may  be  had;  all  proper  ques- 
tions will  then  be  entertained,  whether  jurisdictional  or  going  to  the  merits  of 
the  controversy." 

While  the  Commission  does  not  favor  dilatory  pleas,  and  prefers 
to  reserve  all  questions  either  jurisdictional  or  going  to  the  merits 
of  the  controversy  for  final  hearing  the  Rules  of  Practice  provide  for 
notice  in  the  nature  of  a  demurrer,84  and  a  formal  demurrer  has  been 
interposed  to  a  complaint.85 

wRe  Procedure  Concerning  Questions  of  Law  (1  I.  C.  C.,  224). 

84  See  sees.  106  and  111,  post. 

85  In  Cosmopolitan  Shipping  Co.  v.  Hamburg-American  Packet  Co.  (13  I.  C.  C., 


112  PLEADING  AND  PRACTICE 

Rule  V  of  the  Rules  of  Practice  (Appendix)  :  "A  defendant  who  deems  the 
petition  insufficient  to  show  a  breach  of  legal  duty  may  instead  of  answering  or 
formally  demurring  serve  on  the  complainant  notice  of  hearing  on  the  petition; 
and  in  such  case  the  facts  stated  in  the  petition  will  be  deemed  admitted. ' ' 

Sec.  93.  Parties. — As  in  other  actions  the  choice  of  parties  is  import- 
ant. The  results  "*  of  mis-joinder  and  non-joinder  of  parties  are  not  as 
serious  as  in  law  or  equity  but  cause  inconvenience  and  delay. 

Sec.  94.  Proper  description  of  parties. — The  necessity  for  proper  de- 
scription of  parties  is  manifest.  If  the  complainant  be  a  partnership, 
the  names  of  the  individual  partners  ought  to  be  given ;  if  a  corpora- 
tion, the  laws  of  the  State  under  which  it  is  incorporated  ought  to  be 
stated;  if  one  serves  as  a  receiver  or  in  other  fiduciary  capacity,  the 
complaint  should  show  how  he  has  such  authority  and  also  the  specific 
authority  to  file  the  complaint;  if  a  voluntary  association,  that  fact 
should  be  stated.  The  business  in  which  the  complainant  deals  and 
the  commodities  he  handles  should  be  stated. 

In  the  description  of  parties  defendant  the  complaint  should  give 
the  correct  corporate  name  of  the  carrier  against  which  the  complaint 
is  filed.  The  carrier  may  have  ' '  The ' '  as  part  of  its  corporate  name ; 
it  may  be  a  "railroad,"  or  "railway"  or  "rail-road";  it  may  or  may 
not  be  a  "company.87  " 

In  describing  the  defendants  they  are  generally  alleged  to  be  com- 
mon carriers  and  corporations  organized  under  the  laws  of  various 
states  M  and  to  be  common  carriers  either  by  rail  or  partly  by  rail  and 
partly  by  water  among  the  several  States  and  Territories,  either  nam- 
ing the  States  or  Territories  or  describing  the  locality  by  some  well- 
known  railway  designation." 

Sec.  95.  Parties  complainants. — Complainants  may  be  "any  common 
carrier"  (sec.  15,  as  amended);  "any  person,40  firm,  corporation,  or 

266)  a  formal  demurrer  raising  the  jurisdiction  of  the  Commission  over  the  sub- 
ject matter  was  filed;  after  argument,  the  demurrer  was  sustained. 

'•Johnston-Larimer  D.  G.  Co.  v.  W.  R.  Co.  (12  I.  C.  C.,  52)  it  was  said:  "We 
have  considered  the  advisability  of  holding  the  present  complaint  for  the  purpose 
of  allowing  the  complainant  to  amend  it  and  cite  in  the  additional  necessary  par- 
ties ;  but  there  seems  to  be  little  in  favor  of  that  plan  either  in  the  way  of  expense 
or  convenience.  No  costs  are  taxable  before  the  Commission  and  the  complainant 
can  file  a  new  complaint  with  the  same  ease  that  he  could  amend  the  present  com- 
plaint. The  testimony  already  taken  can  be  introduced  upon  a  future  hearing 
for  what  it  is  worth,  and  complications  which  might  arise  in  proceeding  with  the 
present  investigation  will  be  avoided  by  beginning  de  novo." 

87  In  many  instances  it  is  difficult  to  secure  the  correct  corporate  names  of  the 
carrier.     The  statistical  division  of  the  Commission  has  the  best  collected  informa- 
tion on  the  subject;  Poor's  Manual  of  Railways  is,  in  general,  a  safe  guide.     A 
list  of  the  correct  titles  of  the  principal  carriers  will  be  found  in  the  Appendix. 

**  It  is  not  necessary  to  allege  the  States  in  which  the  carrier  is  incorporated ; 
most  carriers  are  incorporated  in  more  than  one  State;  the  records  of  the  Com- 
mission, in  the  statistical  division,  show  the  States  in  which  the  several  carriers 
are  incorporated  and  of  these  facts  the  Commission  take  judicial  notice. 

88  Such  as  Central  Freight  Association  territory,  or  Trunk  Line  territory,  or 
Official  Classification  territory,  etc. 

**One  may  complain   on  public  grounds,  though  having  no  personal  interest 


PLEADING  AND  PRACTICE  113 

association,41  or  any  mercantile,  agricultural,  or  manufacturing  so- 
ciety, or  any  body  politic  or  municipal  organization"  (sec.  13) ;  or 
"the  railroad  commissioner  or  railroad  commission  of  any  State  or 
Territory"  (sec.  13). 

"No  complaint  shall  be  dismissed  because  of  the  absence  of  direct 
damage  to  the  complainant"  (sec.  13).42 

An  association  of  merchants,  which  has  no  capital  and  which  could 
not  be  compelled  to  pay  court  costs  may  complain : 

INSTANCE.— In  Forest  City  Freight  Bureau  v.  A.  A.  E.  Co.  (13  I.  C.  C.,  110) 
it  was  held  that  a  concern  which  admits  members  upon  contract  to  perform  cer- 
tain services  in  return  for  an  annual  fee  is  an  association  competent  to  be  a  party 
complainant;  and  even  if  on  appeal  the  court  costs  could  not  be  recovered  from 
it,  such  fact  does  not  take  away  the  right  to  apply  to  the  Commission.  And  such 
a  complainant  may  file  a  complaint  for  and  on  behalf  of  one  of  its  members. 

So,  also,  one  who  has  no  real  grievance : 

INSTANCE.— In  I.  C.  C.  v.  D.  G.  H.  &  M.  E.  E.  Co.  (57  Fed.,  1005),  it  was 
held  that  a  complainant  before  the  Commission  need  have  no  real  grievance  because 
the  act  expressly  so  provides;  and  further,  because  the  Commission  has  power 
to  institute  investigations  of  its  own  motion. 

Sec.  96.  One  or  more  parties  on  behalf  of  all  interested. — Not  infre- 
quently complaints  are  filed  by  one  who  brings  the  case  on  behalf 
of  himself  and  others  interested,  and  he  may  or  may  not  name  them. 
There  is  no  necessity,  however,  for  filing  a  complaint  with  such  an 
allegation,  unless  the  parties  be  actually  and  actively  interested,  for 
the  interests  of  shippers  or  communities  similarly  situated  are  consid- 
ered and  conserved  by  the  Commission.  If  relief  is  granted  a  com- 
plainant at  A,  others  dealing  in  the  same  commodity  will  get  the  same 
relief  and  are  permitted,  if  reparation  be  awarded,  to  file  their  claims 
and  they  are  allowed,  if  within  the  period  of  limitation.43  So,  also, 
if  there  is  to  be  a  rearrangement  of  the  rate  schedule  at  A  and  the 
community  B  is  to  be  affected  by  the  rearrangement,  a  proper  appli- 
cation of  the  new  rates  is  made,  although  B  or  its  merchants  are  not 
parties  to  the  proceeding. 

There  are  instances  where  all  defendants  are  not  known  to  the  com- 

(B.  &  A.  E.  Co.  v.  B.  &  L.  E.  Co.,  1  I.  C.  C.,  158).  The  United  States  may  be  a 
party  complainant  (United  States  v.  D.  E.  Co.,  I  C.  C.  Docket,  1699). 

uAn  association  may  have  no  direct  interest  yet  maintain  the  complaint  (Cen- 
tral Y.  P.  Assn.  v.  V.  S.  &  P.  E.  Co.,  10  L  C.  C.,  193;  Am.  Warehouseman's 
Assn.  v.  I.  C.  E.  Co.,  7  I.  C.  C.  556).  An  association  whose  laws  are  in  violation 
of  anti-trust  laws  may  nevertheless  maintain  a  complaint  (Cattle  Baisers'  Assn. 
v.  Ft.  W.  &  D.  C.  E.  Co.,  7  I.  C.  C.,  513). 

"Milk,  etc.,  Assn.  v.  D.  L.  &  W.  E.  Co.  (7  L  C.  C.,  92),  Boston  F.  and  P.  Ex. 
v.  N.  Y.  &  N.  E.  E.  Co.  (4  I.  C.  C.,  664),  B'.  &  A.  E.  Co.  v.  B.  &  L.  E.  Co.  (1 
I.  C.  C.,  158),  Am.  Warehouseman's  Assn.  v.  I.  C.  E.  Co.  (7  I.  C.  C.,  556,  to 
compel  publication  of  tariff),  James  &  Abbot  v.  C.  P.  E.  Co.  (5  L  C.  C.,  612), 
Central  Y.  P.  Assn.  v.  V.  S.  &  P.  E.  Co.  (10  I.  C.  C.  193).  And  a  druggist  may 
complain  of  unjust  discrimination  to  him  in  supplying  coal  cars  (Thompson  v. 
P.  E.  Co.,  10  I.  C.  C.,  640). 

"Southern  P.  L.  Co.  v.  S.  E.  Co.  (14  L  C.  C.  195),  Eddeljnan,  etc.  v.  M.  V. 
E,  Co.  (13  I.  C.  C.,  103). 


114  PLEADING  AND  PRACTICE 

plainant,  such,  as  members  of  classification  committees  and  traffic 
organizations.  There  is  no  reason  why  the  leading  members  might  not 
be  made  parties  and  made  defendants  on  behalf  of  all.  The  better 
practice,  however,  is  to  name  all  members  although  they  may  be  very 
numerous.*4  In  a  sense,  one  always  complains  of  one  defendant  on 
behalf  of  others,  for  as  the  operating  carrier  is  the  proper  defendant, 
it  frequently  is  the  lessor  of  several  railroads,  each  of  which  is  a  sep- 
arate corporate  entity. 

Sec.  97.  Those  in  fiduciary  capacity  as  parties. — The  provisions  of 
the  act  in  general  apply  to  trustees  and  receivers  "  of  carriers ;  and  a 
carrier  in  the  hands  of  a  receiver  may  be  made  a  party  defendant 
even  without  the  consent  of  the  court  appointing  such  receiver ;  **  and 
where  a  receiver  was  appointed  for  a  carrier  defendant  pending  the 
determination  of  a  petition,  it  was  held  that  the  jurisdiction  of  the 
Commission  to  enter  an  order  was  not  ousted.*1 

The  receiver  or  other  officer  is  entitled  to  file  a  petition  for  and 
on  behalf  of  the  corporation  or  partnership  which  he  represents.48 

Sec.  98.  Joinder  of  complainants — Misjoinder — Striking  out  par- 
ties.— Not  infrequently  shippers  similarly  situated  and  engaged  in  the 
same  or  different  lines  of  trade  join  in  a  complaint;  or  one  may  sue 
on  behalf  of  himself  and  others,  who  may  intervene  by  appropriate 
means.  An  association  may  sue  on  behalf  of  itself  and  its  members.49 

Should  a  party  be  named  as  complainant  and  it  should  thereafter 
appear  that  the  particular  complainant  does  not  wish  to  continue  the 
prosecution  of  the  case  he  may  withdraw  by  making  a  request  on  the 
record  to  that  effect ;  and  if  a  carrier  be  improperly  made  a  defendant 
it  may  by  order  be  relieved  from  defending  the  proceeding. 

"Where  one  names  as  defendant  a  carrier  not  interested  in  the 
traffic  which  is  the  subject  of  investigation,  or  not  practicing  the  reg- 
ulations complained  of,  it  is  usual  for  such  defendant  to  answer  by 
way  of  disclaimer  and  to  pay  no  further  attention  to  the  proceedings. 
Should  the  complainant's  contentions  prevail  and  there  be  a  viola- 
tion of  the  law,  an  order  could  not  be  directed  against  a  carrier  which 

"In  Acme  C.  P.  Co.  v.  L.  S.  &  M.  S.  K.  Co.  (I.  C.  C.  Docket,  No.  1431)  there 
were  169  defendants.  But  an  omnibus  complaint  will  not  be  entertained 
(National  Petroleum  Assn.  v.  A.  A.  B.  Co.  14  I.  C.  C.,  272).  A  traffic  bureau 
may  maintain  a  complaint  for  and  on  behalf  of  one  of  its  members.  (Forest 
City  Freight  Bureau  v.  A.  A.  E.  Co.  13  I.  C.  C.,  118). 

45  R.  Com.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324),  B.  of  T.  v.  A.  M.  E.  Co.  (6  I. 
C.  C.,  1),  Ind.  Eef.  Assn.  v.  W.  N.  Y.  &  P.  R,  Co.  (6  I.  C.  C.  378).  A  receiver 
or  trustee  is  liable  under  section  10  for  violating  the  act,  under  section  16  for 
failure  to  obey  an  order  made  under  section  15,  under  section  20  for  violation 
of  the  provisions  relating  to  accounts,  and  under  section  1  of  the  Elkins'  law 
for  violation  thereof. 

"Evans  v.  U.  P.  E.  Co.  (6  I.  C.  C.,  520). 

4TE.  Com.  v.  Clyde  S.  S.  Co.  (5  L  C.  C.,  324). 

"Traer,  receiver,  v.  C.  P.  &  St.  L.  E.  Co.  (13  I.  C.  C.,  451). 

"Milk  Assn.  v.  D.  L.  &.  W.  E.  Co.  (7  I.  C.  C.,  92),  Forest  City  Freight  Bureau 
v.  A.  A.  E.  Co.  (13  I.  C.  C.,  118). 


PLEADING  AND  PRACTICE  115 

neither  handled  nor  proposes  to  handle  the  traffic,  nor  which  did  not 
have  in  force  or  effect  the  regulations  and  practices  complained  of. 

Sec.  99.  Parties  defendant. — Only  common  carriers  subject  to  the 
act  are  usually  made  parties  defendant.80  They  are  of  two  kinds :  (a) 
those  which  are  by  the  act  denned  to  be  common  carriers, ' '  any  corpor- 
ation or  any  person  or  persons  engaged  in  the  transportation  of  oil 
or  other  commodity,  except  water  and  natural  or  artificial  gas,  by 
means  of  pipe  lines,  or  partly  by  pipe  lines  and  partly  by  railroad,  or 
partly  by  pipe  lines  and  partly  by  water"  and  express  and  sleeping 
car  companies;  and  (&)  common  carriers  "engaged  in  the  transpor- 
tation of  passengers  or  property  wholly  by  railroad  (or  partly  by 
railroad  and  partly  by  water  when  both  are  used  under  a  common 
control,  management,  or  arrangement  for  a  continuous  carriage  or 
shipment)"  in  commerce  which  is  interstate,  inter-territorial,  intra- 
territorial,  or  between  a  State  or  Territory  and  the  District  of  Colum- 
bia, or  from  the  United  States  to  an  adjacent  foreign  country,  or  from 
the  United  States  through  a  foreign  country  into  the  United  States; 
also  those  engaged  in  the  transportation  in  like  manner  of  property 
shipped  from  any  place  in  the  United  States  to  a  foreign  country 
and  carried  from  such  place  to  a  port  of  trans-shipment,  or  shipped 
from  a  foreign  country  to  any  place  in  the  United  States  and  carried 
to  such  place  from  a  port  of  entry  in  the  United  States  or  adjacent 
foreign  country. 

Under  the  provisions  of  section  1  of  the  act  parties  defendant 
must  fall  within  one  or  more  of  the  following  classes : 

1.  Common  carriers  by  pipe  line  of  oil  or  other  commodity,  except 
water  and  gas,  if  interstate  transportation. 

2.  Common  carriers  partly  by  pipe  line  and  partly  by  railroad  of 
oil  and  other  commodity,  except  water  and  gas,  if  interstate  transpor- 
tation. 

3.  Common  carriers  partly  by  pipe  line  and  partly  by  water  of 
oil  and  other  commodity,  except  water  and  gas,  if  interstate  transpor- 
tation. 

4.  Common  carriers  of  passengers  or  property  wholly  by  railroad 
if  the  transportation  be  (a)  interstate;  intra-territorial ;  inter-terri- 
torial ;  or  between  a  Territory  or  State  and  the  District  of  Columbia, 
(6)  From  the  United  States  to  an  adjacent  foreign  country,  (c)  From 
the  United  States  through  a  foreign  country  to  any  other  place  in  the 
United  States. 

5.  Common  carriers  of  passengers  and  property  partly  by  railroad 
and  partly  by  water  when  both  are  used  under  a  common  control,  man- 

00  In  appropriate  cases  for  the  enforcement  of  the  statutes  relating  to  inter- 
state commerce  it  is  lawful  under  the  provisions  of  section  2  of  the  Elkins  law 
(Act  of  Feb.  19,  1903)  to  include  as  parties  in  addition  to  the  carrier  all  persons 
interested  in  or  affected  by  the  rate,  regulation,  or  practice  under  consideration. 


116  PLEADING  AND  PRACTICE 

agement  or  arrangement  for  continuous  carriage  or  shipment,  if  the 
transportation  be  of  one  of  the  kinds  mentioned  in  sub-heads  of 
paragraph  4. 

6.  Common  carriers  engaged  in  the  transportation  in  like  manner 
of  property  shipped  from  any  place  in  the  United  States  to  a  foreign 
country  and  carried  from  such  place  to  a  port  of  transshipment,  or 
shipped  from  a  foreign  country  to  any  place  in  the  United  States 
and  carried  to  such  place  from  a  port  of  entry  in  the  United  States 
or  adjacent  foreign  country. 

7.  Express  companies,  if  engaged  in  the  kind  of  transportation 
mentioned  in  paragraph  4. 

8.  Sleeping  car  companies,  if  engaged  in  the  kind  of  transporta- 
tion mentioned  in  paragraph  4. 

Handlers  of  certain  transportation  are  subject  to  the  act,  being  by 
the  act  included  within  the  term  "railroad"  or  "transportation." 
Section  1  provides: 

The  term  "railroad,"  as  used  in  this  act,  shall  include  all  bridges  and  ferries 
used  or  operated  in  connection  with  any  railroad,  and  also  all  the  road  in  use  by 
any  corporation  operating  a  railroad,  whether  owned  or  operated  under  a  contract, 
agreement,  or  lease,  and  shall  also  include  all  switches,  spurs,  tracks,  and  termi- 
nal facilities  of  every  kind  used  or  necessary  in  the  transportation  of  the  persons 
or  property  designated  herein,  and  also  all  freight  depots,  yards,  and  grounds 
used  or  necessary  in  the  transportation  or  delivery  of  any  of  said  property;  and 
the  term  "transportation"  shall  include  cars  and  other  vehicles  and  all  instru- 
mentalities and  facilities  of  shipment  or  carriage,  irrespective  of  ownership  or  of 
any  contract,  express  or  implied,  for  the  use  thereof  and  all  services  in  connection 
with  the  receipt,  delivery,  elevation,  and  transfer  in  transit,  ventilation,  refrigera- 
tion or  icing,  storage,  and  handling  of  property  transported;  and  it  shall  be  the 
duty  of  every  carrier  subject  to  the  provisions  of  this  act  to  provide  and  furnish 
such  transportation  upon  reasonable  request  therefor,  and  to  establish  through 
routes  and  just  and  reasonable  rates  applicable  thereto. 

Under  the  provisions  of  section  2  of  the  Elkins'  law  it  is  permitted 
to  make  all  persons  interested  in  or  affected  by  the  rate,  regulation, 
or  practice  under  consideration  parties  to  a  proceeding  before  the 
Commission  or  before  the  courts.  Under  this  provision  a  grain  eleva- 
tor company  was  recently  with  carriers  of  interstate  commerce  made 
a  party  defendant  (I.  C.  C.  Docket  No.  1821). 

In  determining  whether  a  particular  carrier  is  one  which  can  or 
ought  to  be  made  a  party  defendant,  the  question  is  often  a  difficult 
one,  for  the  reason  that  the  line  between  interstate  and  intrastate 
traffic  has  not  been  clearly  drawn.  In  particular  instances  where  there 
is  doubt  in  the  mind  of  the  pleader  whether  a  carrier  is  subject  to  the 
act,  or  ought  or  might  be  made  a  defendant,  it  is  justifiable  to  resolve 
the  doubt  in  the  affirmative  in  the  first  instance.  If  a  carrier  is  a  nec- 
essary party  and  be  omitted,  no  order  can  be  made ;  if  an  unnecessary 


PLEADING  AND  PRACTICE  117 

party,  and  it  be  made  a  defendant  no  harm  results  to  either  it  or  the 
complainant. 

All  carriers  making  a  connecting  line  over  which  the  rate  applies 
should  be  made  parties,  and  the  Commission  will  make  no  order 
where  proper  parties  are  not  before  it : 

INSTANCE. — In  Michigan  Congress-Water  Co.  v.  C.  &  G.  T.  E.  Co.  (2  I.  C.  C., 
594),  it  was  held  that  it  is  necessary  to  make  all  connecting  lines  parties  in  at- 
tacking a  through  rate  in  which  the  several  lines  participated.  In  disposing  of 
this  point  the  Commission  said:  "We  have  repeatedly  decided  that  we  can  make 
no  order  on  a  question  of  rates  where  the  necessary  parties  are  not  before  us.  In 
Allen  v.  L.  N.  A.  &  C.  E.  Co.  (1  I.  C.  C.,  199)  we  held  that  all  the  roads  con- 
stituting the  line  which  makes  the  through  rates  complained  of  should  be  parties 
to  the  complaint  which  seeks  to  compel  a  reduction  of  the  through  rates.  Again 
in  the  case  of  Harwell  v.  C.  &  W.  E.  Co.  (1  I.  C.  C.,  237)  we  held  that  the  parties 
affected  are  entitled  to  be  notified  in  case  a  change  in  rates  is  asked;  and  that 
we  would  not  make  an  order  correcting  an  alleged  unjust  discrimination,  unless 
the  proper  parties  were  before  us.  And  again  in  the  case  of  Eiddle  Dean  &  Co. 
v.  P.  &  L.  E.  E.  Co.  (1  I.  C.  C.,  490)  we  decided  that  where  the  relation  of  any 
carrier  to  the  matter  complained  of  is  such  that  it  is  in  whole  or  in  part  material- 
ly responsible  for  the  alleged  grievance,  and  has  a  direct  interest  in  any  investi- 
gation of  the  subject-matter  involved,  that  carrier  should  be  a  party  to  the  pro- 
ceeding, and  if  not  a  party  no  relief  can  be  given  against  it.  The  rule  as  to 
proper  parties  in  such  a  proceeding  as  this  is  plain,  simple,  and  elementary. 
There  is  no  difficulty  in  observing  it,  and  especially  where,  as  in  this  proceeding, 
the  defense  set  up  in  the  answer  shows  that  all  the  necessary  parties  had  not  been 
made  defendants.  This  put  the  complainant  upon  an  inquiry  which  it  should  at 
once  have  made,  and  amended  its  complaint  to  correspond  with  the  facts  unless 
it  was  prepared  to  prove  that  this  averment  of  the  answer  was  untrue." 

It  is  unnecessary  to  name  all  carriers  maintaining  the  same  rate 
or  practice,  but  only  those  whose  facilities  are  used  by  the  com- 
plainant : 

INSTANCE. — In  Page  v.  D.  L.  &  W.  E.  Co.  (6  I.  C.  C.,  548)  it  was  held  that  in 
proceedings  before  the  Commission  complainants  are  not  bound  to  name  as  de- 
fendants all  carriers  maintaining  the  rates  or  indulging  in  the  practice  com- 
plained of  but  there  may  be  proceedings  against  the  particular  carrier  or  carriers 
whose  lines  are  used  or  required  by  the  complainant.  It  was  further  held  that 
such  carriers  made  defendants  could  not  excuse  disobedience  of  a  lawful  order  of 
the  Commission  because  other  carriers,  members  of  an  association  with  them,  had 
not  been  made  parties  to  the  proceeding  and  had  failed  or  refused  to  take  action 
in  conformity  with  the  order. 

Carriers  handling  traffic  from  a  point  of  origin  to  a  basing  point 
are  not  necessary  parties  when  the  rates  beyond  the  basing  point  only 
are  involved: 

INSTANCE. — In  Daniels  v.  G.  N.  E.  Co.  (6  I.  C.  C.,  458)  it  was  held  that  as 
through  traffic  from  the  Atlantic  seaboard  to  Sioux  City  and  Sioux  Falls  is  sub- 
jected to  the  same  charges  for  the  haul  from  Chicago  or  Duluth,  as  traffic  shipped 
locally  from  those  places  to  either  destination,  as  rates  from  eastern  points  to 
Chicago  and  Duluth  do  not,  in  any  controlling  degree,  effect  the  present  contro- 
versy, and  are  not  assailed  by  the  complainant,  it  was  unnecessary  to  make  the 
eastern  carriers  parties  to  the  proceeding. 


118  PLEADING  AND  PRACTICE 

Water  carriers  engaged  under  a  common  control,  management  or 
arrangement  for  a  continuous  carriage  or  shipment  of  interstate 
freight  are  properly  made  defendants:  ' 

INSTANCE.— In  B.  Com.  v.  S.  F.  &  W.  B.  Co.  (5  I.  C.  C.,  136)  certain  steam- 
ship companies  were  made  defendants,  it  being  alleged  that  they  with  certain  rail 
defendants  were  common  carriers,  constituting  several  lines,  and  as  such  are  en- 
gaged under  the  common  control,  management  or  arrangement  for  continuous  car- 
riage of  shipments,  in  the  transportation  of  passengers  and  property  "wholly 
by  railroad  and  partly  by  railroad  and  partly  by  water  between  various  points 
in  the  State  of  Florida."  *  *  *  and  Baltimore,  Philadelphia  and  New  York, 
and,  by  connecting  lines,  to  other  eastern  cities.  It  appeared  that  the  Clyde  Steam- 
ship Company  and  the  New  York  and  Texas  Steamship  Company  constituting  all- 
water  lines,  and  engaged  in  connection  with  the  railroads,  in  the  transportation 
of  oranges  from  points  in  Florida  to  northeastern  cities  under  through  bills  of 
lading.  It  was  held  affirming  previous  decisions  (C.  of  C.  v.  F.  &  P.  M.  B.  Co., 
2  I.  C.  C.,  553;  Mattingly  v.  P.  Co.,  3  I.  C.  C.  592)  that  these  water  companies 
were  carriers  of  interstate  commerce  subject  to  the  jurisdiction  of  the  Commission 
in  respect  thereto  and  properly  made  parties. 

Eeceivers  of  rail  carriers  are  proper  parties  and  leave  of  court  to 
complain  of  them  is  not  required : 

INSTANCE. — In  Evans  v.  U.  P.  E.  Co.  (6  I.  C.  C.,  520)  it  was  held  that  leave 
of  court  to  make  the  receiver  of  a  railroad  company  defendant  was  not  necessary. 
Eeceivers  of  railroad  companies  are  common  carriers  subject  to  the  act  to  regulate 
commerce.  (Independent  Eefiners'  Asso.  v.  W.  N.  Y.  &  P.  E.  Co.,  6  I.  C.  C., 
378.) 

In  a  petition  under  the  fourth  section  of  the  act  all  carriers  form- 
ing the  through  line  should  be  made  parties : 

INSTANCE. — In  B.  &  A.  E.  Co.  v.  B.  &  L.  E.  Co.  (  1  I.  C.  C.,  158)  it  was  held 
that  all  companies  forming  a  line  for  long  haul  traffic  are  properly  made  de- 
fendants in  a  petition  charging  violation  of  the  fourth  section  of  the  act. 

A  classification  committee  of  carriers  is  not  properly  made  a  party 
to  a  proceeding  before  the  Commission : 

INSTANCE. — In  McMillan  &  Co.  v.  Western  Classification  Committee  (4  I.  C.  C., 
276)  it  appearing  that  the  Western  Classification  Committee,  the  sole  defendant, 
in  the  making  of  classification  rates  represented  numerous  railroad  companies  and 
that  its  recommendations  and  rates  were  not  obligatory  upon  the  carriers,  it  was 
held  that  with  the  classification  committee  alone  as  defendants  no  investigation  or 
order  that  the  Commission  could  make  would  have  any  binding  effect  upon  the 
carriers. 

In  proceedings  to  change  a  classification  all  carriers  over  which  the 
commodity  passes  should  be  made  parties: 

INSTANCE.— In  Hurlburt  v.  L.  S.  &  M.  S.  E.  Co.  (2  I.  C.  C.,  122)  it  was  held 
that  in  a  proceeding  to  correct  the  classification  of  freight  made  by  an  initial 
carrier,  which  freight  before  reaching  its  destination  must  pass  over  the  roads 
of  several  carriers,  it  is  proper  to  make  all  such  carriers  parties.  But  if  the 
initial  carrier  alone  is  made  defendant  the  proceeding  is  for  that  reason  not  de- 
fective, for  an  order  requiring  that  carrier  to  make  a  correction  will  be  effectual 
for  the  purpose  of  all  subsequent  consignments. 


PLEADING  AND  PRACTICE  119 

Where  carriers  or  localities  have  a  right  to  appear  and  be  heard  and 
are  not  made  parties,  the  Commssion  will  make  no  order: 

INSTANCE.— In  Poughkeepsie  Iron  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C., 
195)  where  a  change  of  rates  in  order  to  overcome  the  difference  in  cost  of  pro- 
duction of  a  particular  commodity  was  sought,  it  was  held  that  the  Commission 
had  no  power  and  authority  to  order  carriers  not  parties  to  a  proceeding  to  raise 
their  rates  for  the  purposes  sought;  and  further  that  the  Commission  would  not 
enter  upon  the  consideration  of  any  such  subject  in  a  proceeding  to  which  such 
carriers  were  not  parties  and  in  which  localities  sought  to  be  burdened  with 
higher  rates  had  no  opportunity  to  be  heard. 

An  intermediate  carrier  may  not  be  a  necessary  but  is  a  proper 
party  to  a  proceeding: 

INSTANCE.— In  Warren-Ehret  v.  C.  E.  Co.  (8  I.  C.  C.,  598)  it  was  held  that 
where  a  company  operates  its  road  as  part  of  a  through  line  in  connection  with 
other  parties  defendant  in  a  case  brought  to  test  the  legality  of  a  through  charge 
over  such  line,  while  a  proper  is  not  a  necessary  party  to  the  proceeding. 

Those  excluded  from  the  provisions  of  the  law  and  hence  not  subject 
to  the  jurisdiction  of  the  Commission  and  incapable  of  being  made 
parties  are  those  who  are  engaged  in  the  interstate  transportation  of 
passengers  or  property  by  other  means  than  stated,  or  in  the  receiv- 
ing, delivering,  storage,  or  handling  of  property  wholly  within  one 
State  and  not  shipped  to  or  from  a  foreign  country  from  or  to  any 
State  or  Territory  (proviso,  section  1)  :  and  those  engaged  as  pro- 
vided in  section  1  of  the  act  if  not  common  carriers  either  by  charter 
or  by  holding  themselves  out  as  such;  also  carriers  wholly  by  water," 
and  independent  water  carriers  engaged  in  transportation  of  trans- 
Atlantic  or  trans-Pacific  commerce.62  All  inter  state  carriers  are  not 
subject  to  the  act — e.  g.,  carriers  by  wagon.  Any  carrier  or  person 
whether  or  not  subject  to  the  act  by  being  specified  may  be  made  a  de- 
fendant, if  he  be  "interested  in  or  affected  by  the  rate,  regulation  or 
practice  under  consideration"  (Elkins  law,  section  2). 

In  selecting  parties  defendant  one  must  sue  all  operating  carriers 
forming  the  route  and  which  handle  the  particular  traffic  the  subject 
of  complaint.  To  make  the  initial  or  intermediate  or  final  carrier  de- 
fendant will  cause  delay,  as  amendment  will  be  necessary.  If  it  be 
desired  to  attack  the  rates  between  competing  points,  and  there  are 

51  Ex  parte  Koehler  (30  Fed.,  867).  While  the  act  applies  to  common  carriers 
engaged  in  certain  transportation  partly  by  railroad  and  partly  by  water,  when 
both  are  used  under  a  common  control,  management  or  arrangement  for  a  con- 
tinuous carriage  or  shipment,  and  while  receiving  goods  as  a  part  of  a  continuous 
line  under  a  through  bill  of  lading,  the  carrier  has  elected  to  handle  interstate 
commerce  (C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.,  162  17.  S.,  184),  yet  it  would  appear 
that  a  through  bill  of  lading  providing  for  trans-Atlantic  or  trans-Pacific  car- 
riage does  not  bring  the  ocean  carrier  within  the  jurisdiction  of  the  Commission 
(Cosmopolitan  Shipping  Line  v.  Hamburg-American  Packet  Co.,  13  I.  C.  C.,  266). 
As  to  extra-territorial  effect  of  United  States  Statutes  see  Wiborg  v.  U.  S.  (163 
TJ.  S.  632),  U.  S.  v.  Morris  (14  Pet.,  464). 

82  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197),  Administrative  Euling  No.  86 
(Appendix)  ;  Cosmopolitan  Shipping  Line  v.  Hamburg-American  Packet  Co.  (13 
I.  C.  C.,  266). 


120  PLEADING  AND  PRACTICE 

several  routes,  it  is  advisable  to  make  defendants  all  carriers  operating 
lines  between  the  two  centers. 

While  custom  requires  that  the  operating  carriers  be  made  parties 
defendant  yet  where  a  controlling  company  was  made  a  party  defend- 
ant respecting  traffic  handled  by  a  subsidiary  company  and  service 
of  the  complaint  was  had  on  the  former,  it  was  held  that  while  the 
subsidiary  company  is  a-  proper,  it  is  not  a  necessary  party.6* 

Sec.  100.  Those  who  must  be  joined  as  defendants. — All  operating 
carriers  handling  the  traffic,  the  subject  of  the  complaint,  are  neces 
sary  parties  defendant;  the  originating,  intermediate  and  final  car- 
riers must  be  named.  Should  one  wish  to  attack  the  rates  between  A 
and  B,  and  the  commodity  be  handled  by  three  carriers,  each  must 
be  made  defendant.  If  these  points  are  connected  by  more  than  one 
route,  the  operating  carriers  composing  the  several  routes  should  be 
made  parties.  So,  also,  if  one  seek  to  secure  a  through  route,  all  operat- 
ing carriers  who  are  to  compose  the  proposed  routes,  must  be  joined ; 
likewise,  if  there  is  an  alleged  violation  of  section  7,  relating  to  con- 
tinuous carriage. 

If  the  proceeding  is  to  secure  a  correction  of  alleged  unreasonable 
regulations  and  practices,  and  such  regulations  and  practices  are 
local  or  made  and  enforced  by  one  carrier,  it  is  not  necessary  to  join 
others ;  so,  also,  if  the  proceeding  be  for  failure  to  file  and  post  tariffs 
and  schedules,  or  to  compel  issuance  of  bill  of  lading  or  failure  to 
make  switch  connections.  But  if  a  practice  be  common  to  several  car- 
riers, and  one  only  be  made  defendant,  the  Commission  will  not  con- 
demn the  practice,  as  all  carriers  have  a  right  to  be  heard.  °* 

Sec.  101.  Effect  of  failure  to  object  to  proper  parties. — Owing  to  the 
liberality  of  the  statute  and  the  Commission  concerning  who  may  be 
proper  parties  complainant,  it  will  avail  nothing  under  ordinary  cir- 
cumstances to  object  to  the  capacity  of  the  complainant  to  institute  a 
proceeding.  The  defendant  may  raise  the  lack  of  personal  interest 
which  the  complainant  has  in  the  proceeding  but  if  the  allegations 
of  violation  of  the  law  are  meritorious  the  want  of  interest  in  the 
plaintiff  will  be  of  no  value  in  excusing  or  avoiding  the  violation. 

"Where  necessary  parties  defendant  are  not  made  such,  it  will  not 
behoove  other  defendants  to  raise  the  question  because  the  Commis- 
sion can  make  no  order  effective  as  against  a  part  of  the  defendants 
when  all  of  them  handle  or  are  interested  in  the  particular  tariff  which 
is  the  subject  of  inquiry.  "  If  a  carrier  be  improperly  made  a  defend- 
ant the  proceedings  as  to  it  will  be  dismissed.  M 

"Mayor  &  Council  of  W.  v.  A.  T.  &  S.  F.  E.  Co.  (  9  I.  C.  C.,  534). 

"Commercial  Club  v.  N.  P.  R.  Co.  (13  I.  C.  C.,  288). 

"Johnston-Larimer  D.  G.  Co.  v.  W.  R.  Co.  (12  I.  C.  C.,  52). 

"•Pitts  v.  A.  T.  &  S.  F.  R.  Co.  (10  I.  C.  C.,  691),  where  two  of  the  carriers 
made  parties  defendant  did  not  handle  the  traffic  in  question,  the  proceeding  as 
to  them  was  dismissed. 


PLEADING  AND  PRACTICE  121 

No  order  will  be  made  where  proper  parties  are  not  before  the  Com- 
mission : 

INSTANCE.— In  Board  of  Trade  v.  C.  &  W.  E.  Co.  (1  I.  C.  C.,  236)  no  order 
could  be  made  correcting  unjust  discrimination  because  of  want  of  proper  parties 
and  distinct  allegations  but  amendments  both  as  to  parties  and  allegations  were 
allowed. 

In  K.  &  I.  B.  Co.  v.  L.  &  KT.  E.  Co.  (2  I.  C.  C.,  162)  the  Commission  declined 
to  express  an  opinion  upon  the  reasonableness  of  rates  where  two  carriers  were 
involved  and  only  one  of  them  a  party;  so  also  in  New  Orleans  C.  Ex.  v.  C.  N. 
O.  &  T.  P.  E.  Co.  (2  I.  C.  C.,  375)  the  Commission  said  that  the  reasonableness 
of  rates  could  not  be  fairly  determined  in  a  proceeding  to  which  some  of  the 
carriers  responsible  for  such  rates  are  not  parties. 

But  the  proceeding  may  be  held  for  amendment  as  to  parties  and 
taking  additional  evidence: 

INSTANCE. — In  Eice  v.  L.  &  N.  E.  Co.  (  1  I.  0.  C.,  503)  the  Commission  held 
that  where  an  important  question  was  raised  by  the  pleadings  in  the  case  and  that 
a  determination  of  it  would  effect  others  quite  as  much  as  the  parties  to  the  pro- 
ceedings the  Commission  would  decline  to  decide  the  question  and  leave  the 
parties  to  bring  it  forward  again  as  they  might  be  advised. 

In  Bates  v.  P.  E.  Co.  (3  I.  C.  C.,  435)  an  order  was  issued  against  respondents 
of  record  but  as  other  carriers  had  committed  similar  violations  of  the  act  the 
cause  was  held  for  the  purpose  of  making  other  carriers  parties  unless  they 
should  comply  with  the  order. 

In  Hamilton  &  Brown  v.  C.  E.  &  C.  E.  Co.  (4  I.  C.  C.,  686)  all  carriers  par- 
ticipating in  the  traffic,  the  rates  for  which  were  questioned,  had  not  been  made 
parties  and  upon  the  showing  that  the  through  rates  were  discriminatory  and  un- 
just, the  carriers,  parties  to  the  proceeding,  were  required  to  adjust  their  tariffs 
BO  as  to  avoid  discrimination;  and  the  carriers  who  were  not  parties  should 
be  summoned  and  show  cause  why  a  like  order  should  not  issue  as  against  them 
unless  their  tariffs  should  be  voluntarily  adjusted  in  accordance  with  the  order. 

In  Spartanburg  B.  of  T.  v.  E.  &  D.  E.  Co.  (2  I.  C.  C.,  304)  where  it  was  obvious 
that  there  were  many  parties  interested  as  directly  as  the  complainant  in  the  pend- 
ing question  it  was  held  that  opportunity  would  be  given  them  to  appear  at  the 
taking  of  evidence. 

.  Sec.  102.  New  parties. — New  parties  complainant  may  be  brought  in 
by  intervention,  amendment  or  by  substitution  of  receiver,  trustee, 
etc.,  each  in  similarity  to  the  practice  in  the  Federal  courts.  After 
new  parties  have  been  joined  in  any  manner  the  proceeding  continues 
in  the  same  way  as  if  there  had  .been  no  change. 

Amendment  of  pleadings  will  be  permitted  to  bring  in  receivers, 
succeeding  those  made  parties: 

INSTANCE. — In  Eeynolds  v.  W.  N.  Y.  &  P.  E.  Co.  (1  I.  C.  C.,  347)  the  receiver 
of  a  carrier  defendant  was  made  a  party  but  in  the  complaint  the  receiver  was 
erroneously  called  the  president,  and  the  petition  was  served  on  him,  and  answer 
filed;  it  was  held  that  it  was  proper  to  allow  the  petitioner  to  amend  his  com- 
plaint so  as  to  show  the  existence  of  the  receivership. 

Notice  of  hearing  may  be  published  that  the  public  may  appear 
and  be  heard: 

INSTANCE.— In  Ee  C.  St.  P.  &  K.  C.  E.  Co.  (2  I.  C.  C.,  231)  it  was  ordered 


122  PLEADING  AND  PRACTICE 

that  a  notice  be  published  of  the  proposed  hearing  that  carriers  and  the  public 
generally  might  have  an  opportunity  to  attend  and  be  heard. 

Sec.  103.  Intervention. — Intervention  by  parties,  alleging  that  they 
are  interested  in  the  result  is  permitted  upon  filing  a  petition  "  there- 
for; such  a  petition  should  set  forth  the  interest  of  the  intervener, 
and  as  well  as  the  position  which  he  proposes  to  take  in  the  pending 
controversy.  As  is  customary  in  Federal  courts  the  intervener  may 
assert  a  right  antagonistic  to  both  of  the  parties,  or  only  against  one 
of  them ; "*  interveners  may  also  take  the  position  that  the  relief  sought 
by  the  complainant  is  not  warranted,  but  that  if  any  relief  is  to  be 
granted  they  desire  the  same  relief  given  them.0" 

Orders  permitting  intervention  are  usually  granted  as  a  matter 
of  course.  An  intervener  is  permitted  to  examine  witnesses,  adduce 
testimony,  and  be  heard  in  argument. 

Interveners  become  substantially  parties  to  the  proceeding  and 
are  entitled  to  all  the  rights  of  parties,  except  a  copy  of  the  testimony, 
and  are  subject  to  the  liabilities  of  complainants  or  defendants.  In  an 
appropriate  case  relief  may  be  granted  in  favor  of  interveners  seeking 
the  same  relief  as  complainants,  and  probably  as  against  interveners 
setting  up  a  defense,  where  the  questions  have  been  properly  raised. 

After  intervention  the  case  proceeds  in  all  respects  as  if  there  had 
been  no  intervention. 

Upon  answer  that  the  consent  of  other  carriers  is  required  to  a 
change  of  rates,  they  may  be  made  parties  by  compulsory  interven- 
tion: 

INSTANCE.— In  Eau  Claire  B.  of  T.  v.  C.  M.  &  St.  P.  E.  Co.  (5  I.  C.  C.,  264) 
the  complaint  was  directed  against  one  carrier  and  the  answer  pleaded  its  ina- 
bility to  alter  the  rates  complained  of  without  consent,  hitherto  withheld,  of  other 
carriers  named  therein;  and  it  was  prayed  that  the  named  roads  should  be  made 
parties  to  the  proceedings.  The  roads  were  made  parties,  and  one  carrier  on  its 
own  application  was  permitted  to  intervene;  in  the  same  case  there  were  numer- 
ous interveners,  being  the  users  of  transportation  facilities,  who  sought  to  sustain 
and  defend  the  rates  assailed  in  the  proceeding. 

While  one  may  not  be  a  party  complainant  or  have  intervened  yet 
if  he  appears  at  a  hearing  opportunity  will  be  given  him  to  be  heard,80 
and  this  is  particularly  true  in  general  investigations;  the  rule  ap- 

57  If  the  circumstances  be  such  that  an  intervening  petition  can  not  be  filed,  a' 
motion  asking  for  permission  to  file  an  intervening  petition  at  a  later  date  may 
be  granted. 

88  As  an  illustration  of  intervention  by  those  proposing  to  assist  complainants, 
see  Western  Oregon  Lumber  Mfrs.  Assn.  v.  S.  P.  Co.  (14  I.  C.  C.,  61). 

As  an  example  of  intervention  on  the  part  of  defendant  see  Eoyal  C.  &  C. 
Co.  v.  S.  E.  Co.  (13  I.  C.  C.,  440). 

°*  As  intervening  petitions  of  Shreveport  Traffic  Association  and  Alexandria 
Progressive  League  in  Monroe  Progressive  League  v.  V.  S.  &  P.  E.  Co.  (I.  C.  C. 
Docket  No.  1388). 

"Hurlburt  v.  L.  S.  &  M.  S.  E.  Co.  (2  I.  C.  C.,  122). 


PLEADING  AND  PRACTICE  123 

plies  equally  to  parties  desiring  to  be  heard  on  behalf  of  the  com- 
plainant or  defendant,  or  on  public  grounds.61 

Sec.  104.  Time  for  answer — Extension  of  time  for  answer. — The 
usual  rule  respecting  time  when  answer  must  be  filed  is  twenty  days 
after  service  of  the  complaint;  in  special  cases  and  for  good  cause 
shown  this  time  is  not  infrequently  reduced,  or  extended. 

Where  upon  good  cause  shown  the  carrier  can  not  reasonably,  ans- 
wer within  the  time  specified  in  the  order,  and  a  brief  delay  will  not 
prejudice  the  interest  of  parties,  the  Commission,  upon  application, 
usually  extends  the  time ;  such  extension  is  not  ordinarily  more  than 
ten  days  beyond  the  time  first  fixed,  except  in  extraordinary  cases. 

Sec.  105.  The  answer. — The  answer,  which  may  be  by  way  of  dis- 
claimer or  traverse  or  confession  and  avoidance,  is  analogous  to  an 
answer  in  an  equity  proceeding.  None  of  the  technicalities  or  for- 
mal parts  is  required  and  are  not  generally  permitted.  The  answer 
does  not,  in  any  event,  ask  for  affirmative  relief  against  the  complain- 
ant, but  only  asks  one  relief,  namely,  that  the  complaint  be  dismissed. 

Sec.  106.  Notice  in  the  nature  of  demurrer. — "Where  a  party  defen- 
dant deems  the  petition  insufficient  to  show  a  breach  of  legal  duty  it 
may,  instead  of  answering  or  formally  demurring,  serve  on  the  com- 
plainant a  notice  of  hearing  of  the  petition ;  in  such  case  the  facts 
stated  in  the  petition  will  be  deemed  admitted.62  Such  a  notice  may  be 
filed  to  raise  a  jurisdictional  question  or  to  raise  the  question  whether 
or  not  the  act  of  the  defendant  constitutes  a  violation  of  the  provis- 
ions of  the  act,  or  to  show  the  want  of  necessarily  formal  allegations 
in  the  petition.  But  such  a  notice,  however,  is  not  usually  filed  where 
the  complaint  alleges  a  violation  of  the  first  or  third  sections  of  the 
act,  for  the  reason  that  in  such  cases  there  must  be  determined 
whether  or  not  the  rate  be  "unjust  or  unreasonable,"  or  the  preju- 
dice "undue."  It  is  clear  that  if  such  a  notice  be  filed  to  com- 
plaints of  the  character  mentioned  the  Commission  would  be  without 
information  either  from  the  complainant  or  defendant  whereon  it  could 
base  a  decision  that  the  rate  or  practice  of  the  carrier  is  of  such 
nature  as  to  fall  beyond  the  prohibition  respecting  "unjust  and  un- 
reasonable" rates  or  "undue"  discrimination.  The  use  of  such  a 
notice  in  cases  involving  rights  based  upon  facts  sufficiently  pleaded 
and  where  no  evidence  is  required  to  show  the  effect  of  the  facts 
expedites  the  determination  of  cases.63 

Sec.  107.  Pleading  different  defenses. — While  pleading  inconsistent 

81  At  one  of  the  hearings  in  Re  Differential  Bates  (11  I.  C.  C.  13)  a  witness, 
who  represented  himself  as  a  "publicist,"  appeared  and  was  permitted  to  file  a 
statement  giving  his  views  of  the  matter. 

92  See  Rule  V  of  the  Eules  of  Practice,  Appendix. 

88  For  example  of  notice  in  the  nature  of  demurrer  see  Cosmopolitan  Shipping 
Co.  v.  Hamburg-American  Packet  Co.  (13  I.  C.  C.,  266). 


124  »    PLEADING  AND  PRACTICE 

defenses  will  ordinarily  constitute  bad  pleading  and  therefore  should 
not  be  done,  yet  there  are  instances  where  different  defenses  may 
be  set  up  in  the  answer  to  a  complaint  before  the  Commission.  One 
is  permitted  to  allege  as  many  grounds  of  defense  as  he  may  have, 
not  being  confined  to  any  one  matter  of  defense,  but  the  disadvan- 
tages of  inconsistent  defenses,  are  so  manifest  that  one  will  not  ordi- 
narily avail  himself  of  the  privilege.  Those  familiar  with  transpor- 
tation facts  and  circumstances  will  appreciate  that  often  defenses  are 
apparently  inconsistent  when  in  truth  they  are  not. 

The  answer  generally  concedes,  although  it  may  deny,  the  right  of 
the  complainant  to  sue.  It  admits  ordinarily  that  the  defendant  is 
subject  to  the  act  to  regulate  commerce  and  the  acts  amendatory 
thereto  and  to  all  lawful  orders  of  the  Commission.  In  an  appro- 
priate case,  however,  the  carrier  may  deny  that  it  is  subject  to  the 
provisions  of  the  act  and  to  the  orders  of  the  Commission.  Such 
denial  of  jurisdiction  may  or  may  not  be  determined  separately  from 
the  issues  formed  in  the  case.  If  the  denial  of  jurisdiction  be  in  the 
nature  of  a  demurrer  the  law  point  is  alone  determined ;  if  determined 
against  the  jurisdiction  the  case  terminates;  if  determined  in 
favor  of  the  jurisdiction,  and  the  carrier  has  not  answered  as  to  the 
facts,  opportunity  is  given  to  answer.61 

The  answer  either  sets  up  a  denial  or  an  admission  of  the  facts  al- 
leged or  alleges  facts  in  addition  to  those  in  the  complaint  and  which, 
in  the  judgment  of  the  defendant,  excuses  the  alleged  violation  of 
the  law.  In  any  event,  if  the  defendant  proposes  to  contest  the  mat- 
ter the  answer  denies  the  alleged  violation  of  law. 

Where  the  complaint  has  allegations  in  the  nature  of  a  confederacy 
clause  stating  that  the  existing  rate,  practice  or  regulation  is  main- 
tained and  enforced  in  violation  of  the  Sherman  antitrust  law,  it  is 
usual  for  the  carrier  to  deny  any  violation  thereof. 

By  answering  on  the  merits  a  defendant  is  not  precluded81  from 
thereafter  raising  questions  of  jurisdiction  or  the  insufficiency  of  the 
petition;  the  answer,  although  silent  upon  the  right  of  the  Commis- 
sion to  determine  the  matters  alleged  or  upon  the  sufficiency  of  the 
allegations  of  the  petition  does  not  preclude  the  defendant  from 
thereafter  raising  the  questions,  although  it  might  properly  have  filed 
instead  of  its  answer  a  notice  in  the  nature  of  demurrer.  The  fail- 
ure to  file  such  a  notice  does  not  estop  the  defendant  from  thereafter 
raising  the  same  questions,  for  at  the  hearing  it  may  make  a  motion 
to  dismiss  the  petition  for  insufficiency. 

Where  a  defendant  has  failed  to  answer  the  complaint,  it  is  pro- 
vided by  Rule  X  of  the  Rules  of  Practice,  that  "the  Commission  will 
take  such  proof  of  the  facts  as  may  be  deemed  proper  and  reasonable, 

"Bule  of  Practice  No.  V  (Appendix). 


PLEADING  AND  PRACTICE  125 

and  make  such  order  thereon  as  the  circumstances  of  the  case  appear 
to  require." 

Sec.  108.  Effect  of  answer  to  part  only  of  petition. — Where  through 
error  or  inadvertence  the  answer  is  not  a  complete  answer  to  the  al- 
legations of  the  complaint  the  defendant  is  not  ordinarily  restricted 
to  those  matters  which  it  has  alleged  in  its  pleading.  It  may  give 
evidence  upon  matters  of  fact  not  contained  in  the  pleading  provided 
it  is  relevant  to  the  subject  of  controversy.  The  failure  to  make  such 
allegations  as  should  have  been  made  does  not  exclude  the  defendant 
from  thereafter  setting  up  new  or  additional  defenses.  As  the  com- 
plainant is  not  restricted  to  the  matters  which  he  alleges  in  the  com- 
plaint in  adducing  testimony,  so  the  defendant  is  not  restricted  con- 
cerning the  scope  of  the  evidence  which  it  may  give  at  the  hearing. 
Neither  of  the  parties  is  estopped  to  give  evidence  tending  to  show 
or  excuse  or  justify  the  violation  of  the  act  if  germane  to  the  allega- 
tions of  the  complaint  or  answer. 

Thus  if  one  should  allege  a  certain  rate  to  be  relatively  unreason- 
able and  in  violation  of  section  3  he  is  ordinarily  permitted  to  give 
evidence  tending  to  show  that  the  rate  is  unreasonable  per  se;  also 
the  complainant  is  permitted  to  give  evidence  upon  matters  which 
arise  after  the  complaint  is  filed  and  before  hearing.  And,  if  a  de- 
fendant attempt  to  justify  a  rate  because  of  increased  operating  ex- 
penses, it  would  be  permitted  to  show  that  the  value  of  the  service 
is  as  much  or  more  than  the  present  rate ;  so,  also,  where  the  answer 
justifies  the  regulation  of  practice  because  of  one  reason,  evidence 
may  be  given  on  additional  reasons  whether  these  reasons  existed  at 
the  time  of  answer  or  arose  subsequent  thereto. 

Sec.  109.  Service  of  answer. — The  answer  of  the  defendant  is  served 
by  it  on  the  complainant  or  his  attorney  by  mail.  The  complainant 
or  attorney  should  acknowledge  the  receipt  of  the  answer,  both  to  the 
carrier  and  to  the  Commission. 

Sec.  110.  Disclaimer. — Where  a  defendant  does  not  handle  the 
traffic  or  it  is  not  proposed  that  it  shall  handle  the  traffic,  or  it  does 
not  have  in  force  and  effect  the  regulations  or  practices  complained 
of,  it  may  disclaim  by  way  of  answer.  And,  if  the  disclaimer  be  true, 
the  complainant  ordinarily  waives  his  right  against  the  particular 
defendant  at  the  hearing. 

Sec.  111.  Issues — Replication — Joinders  of  issue. — The  issues  in  a 
case  before  the  Commission  are  made  by  the  complaint  and  answer. 
There  is  no  replication  or  joinder  of  issue  or  pleading  subsequent  to 
answer,  except  by  intervening  petitioners.  It  follows  that  under  the 
system  in  use  there  can  be  no  departure. 

The  Rules  of  Practice  make  no  provision  for  filing  a  replication; 
if  the  state  of  the  pleadings  should  be  such  that  the  complainant 


126  PLEADING  AND  PRACTICE 

wishes  to  reply  to  matters  set  up  in  the  answer,  he  is  under  the  neces- 
sity of  doing  so  either  by  adducing  evidence  at  the  hearing  or,  if  the 
liberality  of  the  rules  of  evidence  allowed  by  the  Commission  will  not 
avail  him,  of  amending  his  complaint. 

Replications  are  unknown  in  the  practice  before  the  Commission 
and  leave  asked  for  that  purpose  was  denied: 

INSTANCE.— In  O.  S.  L.  E.  Co.  v.  N.  P.  E.  Co.  (3  I.  C.  C.,  264)  the  complainant, 
after  answer,  asked  leave  to  file  a  replication.  Holding  that  a  replication  could 
not  be  filed  the  Commission  said :  ' '  The  Eules  of  Practice  in  this  Commission 
not  only  do  not  provide  for  a  replication  to  the  answer,  but  in  effect,  though  not 
in  terms,  exclude  it.  Eule  IV  provides  for  an  answer,  unless  the  respondent  sets 
the  case  for  hearing  on  the  complaint  under  Eule  V,  which  provides  as  follows: 
'If  a  carrier  complained  against  shall  deem  the  complaint  insufficient  to  show  a 
breach  of  legal  duty,  it  may,  instead  of  filing  an  answer,  serve  on  the  complainant 
notice  for  a  hearing  of  the  case  on  complaint.'  But  when  an  answer  is  filed 
the  Eules  contemplate  that  the  issue  is  thereby  joined.  The  language  of  Eule  XI 
is  this:  'Upon  issue  being  joined  by  the  service  of  answer,  the  Commission  will 
assign  a  time  and  place  for  hearing  the  same. '  And,  again,  in  XII :  '  When  a 
cause  is  at  issue  on  petition  and  answer,  each  party  may  proceed  at  once  to  take 
depositions,'  etc.  The  omission  to  provide  for  a  replication  to  the  answer  was 
not  an  oversight  when  the  Eules  of  Practice  were  drafted  and  adopted.  The  view 
of  the  Commission  then  was  to  simplify  the  practice  as  much  as  practicable. 
Experience  since  has  not  developed  any  necessity  for  change  in  the  respect  under 
consideration.  Both  the  letter  and  the  spirit  of  the  statute  excludes  the  idea  of 
technicality  in  its  administration.  The  complaint  and  answer  are  sufficient  to 
indicate  the  substantial  controversy.  Evidence  is  admitted  with  liberality  to  de- 
velop all  facts  that  bear  on  the  issue  thus  made.  Under  the  practice  pursued  in 
the  hearing  of  causes  the  complainant  would  gain  nothing  by  filing  a  replication, 
and  would  lose  nothing  by  not  filing  it.  The  complainant  has  leave  to  withdraw 
his  motion  to  file  a  replication." 

Sec.  112.  Exceptions  to  answer. — The  equity  practice  of  filing  excep- 
tions to  answers  is  not  at  all  common  although  the  answers  may  set  up 
irrevelant  and  immaterial  matter.  In  one  instance  "  exceptions  to  an- 
swers were  filed  on  the  ground  that  the  answers  were  scandalous  and 
impertinent.  The  exceptions  were  heard  and  argued  at  the  hearing  and 
upon  suggestions  from  the  bench  the  defendants  against  whose  an- 
swers the  exceptions  were  filed  withdrew  their  answers  and  adopted 
the  answer  of  another  carrier. 

Sec.  113.  Joint  answers. — The  filing  of  joint  answers  by  two  or  more 
defendants  is  permitted  in  the  practice  before  the  Commission.  Not 
infrequently  the  facts  of  the  case  are  such  that  a  joint  answer  is  ad- 
vantageous; so,  also,  when  several  defendants  are  represented  by  the 
same  traffic  manager  or  there  is  a  community  of  interest  between  two 
or  more  carriers  parties  defendant. 

Where  two  or  more  carriers  desire  to  file  a  joint  answer  as  to  a 
number  of  matters  alleged  in  the  petition  and  one  of  them  desires  to 

"National  Hay  Assn.  v.  L.  S.  &  M.  S.  E.  Co.,  Chicago  Hearing  (9  I.  C.  C., 
264). 


PLEADING  AND  PRACTICE  127 

separately  set  up  a  defense  not  common  to  all  the  defendants  a  joint 
answer  may  be  filed  by  the  several  defendants  and  in  it  the  particu- 
lar carrier  may  answer  specially  concerning  the  matter  of  the  defense 
it  desires  to  set  up. 

Sec.  114.  Hearings. — When  an  answer  has  been  filed  with  the  Com- 
mission and  served  upon  a  complainant  (whose  duty  it  is  to  acknow- 
edge  receipt  thereof  to  the  Commission),  either  party  may  by  letter 
or  by  use  of  Form  No.  4  (Appendix)  request  that  the  hearing  be  set 
for  a  specific  time  and  at  a  particular  place.  When  the  time  for  ans- 
wer has  elapsed  a  hearing  may  be  set  although  no  answer  has  been 
filed.  Hearings  may  be  held  in  any  part  of  the  United  States,  as  the 
convenience  of  the  Commission  and  parties  will  permit.  The  time 
ordinarily  requested  for  hearing  is  such  that  the  parties  may  be  given 
at  least  ten  days  notice  of  the  date  and  place. 

Should  a  hearing  not  be  requested,  one  or  both  of  the  parties  may 
for  reasons  peculiar  to  the  case  ask  that  the  time  of  hearing  be  de- 
layed; the  reasons  for  delay  ought  to  be  cogent,  otherwise  the  hear- 
ing will  be  set  for  such  time  and  place  as  the  Commission  is  able. 

Should  the  complainant  or  defendant  not  request  a  date  for  hearing 
the  Commission  will  fix  the  time  and  place  of  hearing  on  its  own  mo- 
tion, for  it  is  desired  that  cases  be  promptly  disposed  of. 

Rule  X  of  the  Eules  of  Practice  (Appendix)  provide  for  the  as- 
signment of  cases  for  hearing,  method  of  taking  testimony,  and  bur- 
den of  proof. 

The  day  for  hearing  will  be  assigned  upon  the  request  of  either 
party  (Re  Procedure  in  Cases  at  Issue,  1  I.  C.  C.,  223). 

Hearings,  when  once  arranged  for,  will  not  be  changed  except  for 
very  cogent  reasons.  Want  of  preparation  or  engagements  of  counsel 
where  there  is  more  than  one  are  not  in  general  sufficient  causes  for 
postponement  of  hearing;  and  a  hearing  will  not  be  delayed  upon  a 
purely  technical  objection  not  reaching  the  merits  of  the  contro- 
versy,66 Counsel  and  parties  are  expected  to  appreciate  the  many 
engagements  of  the  Commission  and  the  examiners  and  to  be  prepared 
to  attend  the  hearings  and  present  their  case. 

Sec.  115.  Briefs. — Cases  may  be  submitted  on  briefs  and,  if  the 
parties  desire  it  the  importance  of  the  case  and  the  convenience  of 
the  Commission  will  permit,  oral  argument  may  be  had. 

The  Rules  of  Practice  (Rule  XIV,  Appendix),  make  provision  for 
the  contents,  service,  printing,67  and  filing  of  briefs.  The  rules  pro- 
vide that  the  briefs  shall  contain  an  abstract  of  the  evidence  relied 
upon  by  each  of  the  parties  with  references  to  the  pages  of  the  testi- 

"•Benton  T.  Co.  v.  B.  H.  St.  J.  E.  &  L.  Co.  (13  I.  C.  C.,  542). 

87  Briefs  shall  be  printed  in  12-point  type,  on  antique  finish  paper,  5  7-8  inches 
•wide  by  9  inches  long,  with  suitable  margins,  double-leaded  text  and  single- 
leaded  citations. 


128  PLEADING  AND  PRACTICE 

mony,  substantiating  the  facts.  The  brief  of  the  complainant  is  re- 
quired to  be  filed  with  the  Commission  and  served  upon  the  adverse 
party  within  fifteen  days  after  the  testimony  has  been  concluded; 
brief  of  defendant  is  due  within  ten  days  thereafter,  and  reply  brief 
of  complainant  is  due  five  days  after  service  of  defendant's  brief  on 
him.  The  time  within  which  briefs  and  reply  briefs  are  to  be  filed 
may  be  shortened  or  extended  as  the  circumstances  require. 

If  the  case  is  to  be  argued  it  is  provided  that  briefs  shall  be  filed 
and  served  at  least  five  days  before  the  oral  argument. 

Briefs  are  served  by  mail  and  the  counsel  on  whom  a  brief  is  ser- 
ved will  acknowledge  its  receipt  promptly,  both  to  the  counsel  trans- 
mitting it  and  also  to  the  Commission. 

The  filing  of  briefs  may,  by  consent  of  the  parties,  be  dispensed 
with  for  the  case  may  be  rested  upon  the  testimony.  If  there  be 
great  doubt  of  the  facts  or  serious  conflict  of  evidence,  or  if  compli- 
cated questions  of  law  are  involved,  briefs  ought  to  be  filed. 

The  statute  requires  in  case  damages  are  awarded  that  a  report  of 
the  Commission  shall  include  the  findings  of  fact  on  which  the  award 
is  made  (sec.  14).  It  is  customary  in  such  cases  to  make  the  suggest- 
ed findings  of  fact  a  part  of  the  brief.  The  findings  of  a  particular 
fact  or  set  of  facts  is  often  requisite  in  order  that  damages  may  be 
awarded;  naturally  the  proposed  findings  of  fact  must  be  properly 
substantiated  by  the  evidence  adduced  at  the  hearing. 

As  the  complainant  may  seek  either  relief,  or  relief  with  damages, 
his  brief  and  as  well  as  the  brief  of  the  defendant,  may  be  of  one  or 
two  kinds.  If  relief  only  is  sought,  the  brief,  in  addition  to  the 
title  of  the  case,  will  contain  (a)  a  statement  of  the  case,  (6)  argu- 
ment, (c)  the  conclusions;  if  the  complainant  seeks  relief  and  dam- 
ages, the  brief  may  properly  contain  as  a  separate  head  the  suggested 
findings  of  fact,  serially  numbered,  whereon  it  is  asked  that  the 
Commission  award  reparation;  the  brief  of  the  defendant  may  or 
may  not,  according  as  the  circumstances  of  the  case  warrant,  admit 
the  truthfulness  of  the  suggested  findings  of  fact. 

In  preparing  the  statement  of  the  case  it  is  well  to  follow  the  rule 
laid  down  by  the  Supreme  Court,  that  it  shall  be  "a  concise  abstract, 
or  statement  of  the  case  presenting  succinctly  the  questions  involved. ' ' 

In  making  the  legal  argument  *  in  the  brief  the  practitioner  will  ap- 
preciate that  the  decisions  of  the  Supreme  Court  of  the  United  States, 
of  the  Federal  circuit  and  district  courts,  and  of  the  Commission  it- 
self, will  take  precedence,  where  the  precise  point  has  been  decided, 

"It  not  infrequently  happens  that  recourse  is  had  to  the  decisions  of  English 
courts  in  construing  and  applying  the  act.  Some  parts  of  the  act  have  not  as  yet 
been  considered  by  either  the  Commission  or  the  courts  and  where  the  language 
is  similar  to  the  English  statute,  it  is  proper  to  refer  to  the  decisions  of  the 
English  tribunals.  As  an  illustration,  see  the  brief  of  defendant's  counsel  in 
Traer,  receiver,  v.  I.  C.  E.  Co.  (13  I.  C.  C.,  451). 


PLEADING  AND  PRACTICE  129 

over  decisions  of  State  courts,  State  railway  commissions  or  an 
English  court. 

While  the  argument  to  be  included  in  the  brief  is  left  to  the  discre- 
tion of  counsel,  as  well  as  the  language  which  shall  be  used,  yet  it 
should  be  recalled  that  "briefs  should  be  respectful  to  the  court,  the 
parties,  and  all  persons  named  in  them." 

Sec.  116.  Argument. — Where  the  questions  involved  in  a  proceeding, 
either  of  fact  or  of  law,  are,  in  the  minds  of  the  contesting  parties, 
of  sufficient  importance  that  in  addition  to  the  filing  of  briefs  there 
should  be  oral  argument,  the  Commission  usually  grants  it  upon  re- 
quest. The  date  of  argument  is  fixed  by  the  Commission  as  will  best 
suit  its  convenience  and  that  of  the  parties;  arguments  are  usually 
heard  at  Washington,  unless,  upon  request  for  another  place,  it  will 
suit  the  convenience  of  the  Commission  to  name  such  place.  At  the 
argument70  one  or  more  of  the  Commissioners  may  sit;  if  one  only, 
then  that  one  to  whom  has  been  assigned  the  case  in  accordance  with 
the  custom  prevailing  (see  sec.  4). 

Where  the  facts  are  not  seriously  disputed  and  the  questions  of 
law  are  not  complex,  or  for  other  good  reasons,  argument  may  be 
had  at  the  conclusion  of  the  hearing. 

The  time  allotted  to  the  several  parties  for  argument  varies  with 
the  importance  of  the  case ;  usually  at  least  one  hour  is  given  to  each 
of  the  parties,  the  customary  rules  concerning  the  right  to  open  and 
close  prevailing;  if  there  be  interveners  they  are  usually  permitted 
time  for  argument,  the  duration  depending  upon  the  importance  of 
their  interest;  but  if  the  position  of  an  intervener  is  directly  in  ~ic- 
cord  with  a  complainant  or  a  defendant,  separate  time  for  argument 
by  the  intervener  may  not  be  permitted. 

Sec.  117.  Copies  of  testimony. — One  copy  of  the  testimony  is  fur- 
nished to  the  principal  complainant  and  one  copy  to  the  principal 
defendant  without  cost.  Others  who  desire  copies  can  obtain  them 
by  paying  therefor  from  the  stenographers  under  contract  with  the 
Commission.71 

Sec.  118.  Motions. — In  the  course  of  a  proceeding  there  are  fre- 
quently occasions  when  motions  of  various  kinds  are  necessary.  These 

"Smith  v.  Bingham  (3  111.  App.,  65).  Some  practioners  before  the  Com- 
mission are  fond  of  writing  sarcastic  briefs,  speaking  slightingly  and  with  dis- 
respect of  witnesses.  Such  practice  is  not  to  be  commended,  for  in  addition  to 
such  unwarranted  displays  of  spleen  the  practitioner  generally  prejudices  his  case. 
Probably  in  an  aggravated  case  a  motion  to  strike  such  briefs  from  the  files  would 
be  granted. 

70  In  addressing  the  Commission,  or  one  of  the  Commissioners,  the  custom  is  not 
uniform.      Some  use  the   term   ' '  Your  honor, "   or  "  Your   honors ' ' ;    others   say 
"Mr.   Commissioner,"  or  "Judge."     In  speaking  individually  to  the  members 
of  the  Commission,  some  of  them  prefer  the  titles  by  which  they  have  a  right  to 
be  called  by  reason  of  previous  service. 

71  The  present  contractors  are  Hulse  &  Allen,  67  Wall  street,  New  York;    Cen- 
tury Building,  Washington,  D.  C.,  Scarritt  Building,  Kansas  City,  Mo. 


130  PLEADING  AND  PRACTICE 

motions  are  usually  to  permit  intervention,  for  leave  to  dismiss,  for 
leave  to  amend,  and  such  other  motions  as  during  the  progress  of  the 
case  may  be  deemed  advisable.  A  motion  is  ordinarily  granted  as 
a  matter  of  course,  but  where  rights  are  to  be  affected  there  may  be 
argument  whether  it  should  be  granted. 

Sec.  119.  Costs. — Counsel  fees. — There  are  no  costs  chargeable  by 
the  Commission.71  Parties  are,  however,  compelled  to  pay  witnesses 
the  same  fees  and  mileage  as  is  now  provided  by  law  for  the  Federal 
courts. 

The  provisions  of  section  8  of  the  act  applying  only  to  the  courts  n 
do  not  permit  the  Commission  to  award  counsel  or  attorney's  fees. 

Sec.  120.  Practice  in  reparation  cases. — It  is  clear  that  where  a  com- 
plainant seeks  an  award  of  reparation,  either  for  himself  or  for  others, 
the  complaint  should  contain  sufficient  allegations  and  of  such  precise 
nature  as  will  support  a  prayer  for  damages.  A  complaint  may  seek 
reparation  for  any  of  the  violations  of  the  act  by  reason  of  which  the 
complainant  has  been  damnified ;  the  more  usual  cases  asking  repara- 
tion involve  the  question  of  unreasonable  rates,  either  per  se  or  rela- 
tively and  on  account  of  undue  discrimination,  chiefly  in  the  furnish- 
ing of  cars;  not  infrequently  complaints,  both  formal  and  informal, 
seek  reparation  on  account  of  misrouting,  clerical  errors  in  computa- 
tion, and  misapplication  of  a  rate. 

Where  the  complaint  seeking  reparation  is  based  upon  an  unreas- 
onable rate  it  ought  not  only  to  allege  the  facts  necessary  to  support 
a  complaint  whereon  shall  be  determined  what  the  reasonable  rate 
is,  but  also  an  ad  damnum  clause,  with  a  bill  of  particulars  specify- 
ing shipments  which  have  been  made  at  the  alleged  unreasonable 
rate;  if  shipments  shall  continue  to  be  made  during  the  pendency 
of  the  hearing  or  until  the  rate  shall  have  been  changed,  supplement- 
al bills  of  particulars  may  be  filed  in  order  that  the  statute  of  limita- 
tions may  not  run.  The  measure  of  damages  in  reparation  cases  in- 
volving the  reasonableness  of  a  rate  is  computed  by  the  difference  be- 
tween the  rate  charged  and  the  rate  found  to  be  reasonable ; 7*  the  time 
from  which  reparation  shall  start  is  in  the  discretion  of  the  Commis- 
sion.75 

Reparation  may  be  awarded  to  those  who  are  the  real  and  substan- 
tial parties  in  interest,  and  is  generally  to  the  person  who  has  been 
required  to  pay  the  freight  charges : 

INSTANCE. — In  Nicola,  Stone  &  Myers  Co.  v.  L.  &  N.  E.  Co.  (14  I.  C.  C., 
199)  :  "At  the  hearing  of  the  oral  argument  in  these  cases  counsel  for  certain 

"Merchants  Assn.  v.  N.  Y.  N.  H.  &  H.  E.  Co.  (13  I.  C.  C.,  225). 

18  Councill  v.  W.  &  A.  R.  Co.  (1  I.  C.  C.,  339). 

74  Holmes  &  Co.  v.  S.  E.  Co.  (8  I.  C.  C.,  561).  The  unreasonable  rate  must  be 
based  upon  evidence  and  a  finding  that  it  was  unreasonable  at  the  time  it  was 
paid  (Grain  Shippers'  Assn.  v.  I.  C.  E.  Co.,  8  I.  C.  C.,  158). 

"Burgess  v.  Transcontinental  Freight  Bureau  (13  L  C.  C.,  668). 


PLEADING  AND  PRACTICE  131 

mill  men  and  manufacturers  of  lumber  in  Georgia  appeared  and  represented  to  the 
Commission  that  they  were,  by  intervention  proceedings  in  the  United  States 
Circuit  Court  for  the  Southern  District  of  Georgia,  setting  up  claims  for  repara- 
tion in  cases  pending  in  said  court  and  involving  reparation  on  shipments  between 
points  of  origin  and  destination  embraced  in  the  orders  referred  to  in  opposition 
to  the  claims  of  shippers  of  such  lumber,  on  the  ground  that  in  the  general  course 
of  the  lumber  business  the  lumber  is  ordinarily  sold  by  the  manufacturer  or  mill 
man,  f.  o.  b.  cars  at  the  mill,  at  prices  taking  into  account  the  amount  of  the 
freight  which  must  be  paid  for  transportation  from  that  point  to  destination; 
that  the  purchaser  to  whom  it  is  consigned  adds  the  amount  of  the  freight  to  the 
price  of  the  lumber  when  he  disposes  of  it,  and  that  the  party  really  injured  and 
damaged  by  the  establishment  and  exaction  of  the  unreasonable  rate  is  the  manu- 
facturer or  the  mill  man,  the  price  of  whose  commodity  has  been  unfavorably 
affected  by  such  rate.  In  other  words  it  is  contended  that  the  manufacturer  has 
had  to  absorb  the  freight  rate  in  the  selling  price  of  his  lumber.  On  the  other 
hand,  it  is  contended  by  the  carriers  that  both  the  manufacturer  or  mill  man  and 
the  broker  or  dealer  to  whom  he  ordinarily  sells  the  lumber  protect  themselves 
against  the  injury  caused  by  the  excessive  amount  of  the  rate  by  adding  it  to 
the  price  of  the  lumber,  thus  imposing  the  burden  or  injury  upon  the  consumer, 
and  that  if  any  one  of  the  parties  is  entitled  to  a  refund  it  is  the  latter. 

"The  three  classes  of  persons  concerned  in  this  matter  of  refund  are: 

"1.  The  carriers,  who  are  simply  the  trustees  or  stakeholders  of  the  fund  and 
whose  duty  it  is  to  pay  it  over  to  the  person  adjudged  to  be  entitled  thereto  on 
the  order  of  a  tribunal  of  competent  jurisdiction. 

' '  2.  The  vendor  of  the  lumber,  who  may  be  variously  designated  as  the  manufac- 
turer, shipper,  mill  man,  consignor,  etc. 

"3.  The  vendee  of  the  lumber,  who  may  be  variously  designated  as  wholesaler, 
retailer,  broker,  consignee,  consumer,  etc. 

"The  suggestion  of  these  manufacturers  or  mill  men,  through  their  counsel,  so 
far  as  it  applies  to  claims  pending  before  the  Commission,  would,  if  followed, 
lead  the  Commission  away  from  the  direct  results  of  the  act  of  the  carrier  in 
the  establishment  and  exaction  of  an  unjust  rate  into  the  domain  of  indirect 
and  remote  consequences  and  perhaps  into  questions  of  equity  between  the  vendor 
and  vendee  of  the  lumber.  The  vendor  sells  the  lumber  for  the  best  price  he  can 
get,  and  the  vendee  buys  at  as  low  a  figure  as  he  can.  The  price  which  the  one 
is  able  to  get  and  the  other  must  pay  is  of  necessity  fixed  or  controlled  by  many 
influences,  including,  of  course,  the  transportation  charges.  *  *  *  We  do  not 
understand  that  the  act  to  regulate  commerce  contemplates  or  authorizes  the  appli- 
cation by  the  Commission  of  its  provisions  in  respect  to  reparation  on  account  of 
unreasonable  rates  in  such  manner.  Whatever  a  court  of  equity  might  be  able 
to  do  and  be  justified  in  doing  in  dealing  with  the  relations  between  the  vendor 
and  vendee  of  the  lumber  in  reference  to  the  rates  or  other  considerations,  the 
Commission  in  confined  in  the  making  of  awards  for  reparation  to  the  injury  or 
damage  sustained  by  those  who  are  the  real  and  substantial  parties  at  interest 
in  the  transaction  in  which  such  transportation  charges  have  been  made.  The 
reparation  is  due  to  the  person  who  has  been  required  to  pay  the  excessive  charge 
as  the  price  of  transportation.  It  follows  that  we  must,  in  making  orders  of 
reparation  in  these  cases,  upon  proper  proof  of  the  shipments,  make  such  orders 
in  favor  of  those  who  paid  the  charges  as  freight  charges,  or  on  whose  account 
the  same  were  paid,  and  who  were  the  true  owners  of  the  property  transported 
during  the  period  of  transportation." 


132  PLEADING  AND  PRACTICE 

And  it  is  not  necessary  that  a  shipper  be  ultimately  damaged  in 
order  to  be  awarded  reparation: 

INSTANCE. — In  Burgess  v  Transcontinental  Freight  Bureau  (13  I.  C.  C.,  669) 
it  was  held  that  a  shipper  may  be  awarded  reparation  although  not  ultimately 
damaged.  The  Commission  said:  "These  complainants  were  shippers  of  hard- 
wood lumber  to  this  destination  and  they  were  entitled  to  a  reasonable  rate  from 
the  defendants  for  the  service  of  transportation.  An  unreasonable  rate  was  in 
fact  exacted.  They  were  thereby  deprived  of  a  legal  right  and  the  measure  of 
their  damage  is  the  difference  between  the  rate  to  which  they  were  entitled  and 
the  rate  which  they  were  compelled  to  pay.  If  complainants  were  obliged  to  fol- 
low every  transaction  to  its  ultimate  result  and  to  trace  out  the  exact  commercial 
effect  of  the  freight  rate  paid,  it  would  never  be  possible  to  show  damages  with 
sufficient  accuracy  to  justify  giving  them.  Certainly  these  defendants  are  not 
entitled  to  this  money  which  they  have  taken  from  the  complainants,  and  they 
ought  not  to  be  heard  to  say  that  they  should  not  be  required  to  refund  this  amount 
because  the  complainants  themselves  may  have  obtained  some  portion  of  this  sum 
from  the  consumer  of  the  commodity  transported." 

The  members  of  a  complaining  association  may  be  entitled  to  an 
award  of  reparation : 

INSTANCE. — In  Independent  Befiner's  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (6  I.  C. 
C.,  378)  it  was  held  that  where  members  of  a  complaining  association  had  served 
upon  an  initial  carrier  claims  for  reparation  in  accordance  with  a  stipulation, 
the  claimants  were  entitled  to  have  their  claims  considered  in  the  pending  case. 

But  not  where  the  demand  for  reparation  is  indefinite: 

INSTANCE.— In  Mo.  &  K.  S.  Assn.  v.  A.  T.  &  8.  F.  E.  Co.  (13  I.  C.  C.,  411) 
it  was  held  that  members  of  the  complaining  association  can  not  be  awarded 
reparation  in  a  case  where  the  complaint  of  the  association  is  such  that  no  repara- 
tion can  be  awarded  thereon.  Thus,  where  the  demand  for  reparation  was  in- 
definite the  members  of  the  association  could  not  secure  reparation  thereunder, 
as  their  rights  could  be  no  greater  than  the  association's  under  the  complaint. 

The  liability  of  the  carriers  for  reparation  is  restricted  to  those 
over  whose  routes  the  shipments  moved: 

INSTANCE.— In  Nicola,  Stone  &  Myers  v.  L.  &  N.  E.  Co.  (14  I.  C.  C.,  199)  it 
was  said:  "The  complainants  contend  that  the  defendant  carriers  who  concurred 
in  establishing  the  unlawful  advance  in  the  rates  under  consideration  are  jointly 
and  severally  liable  for  all  the  damages  resulting  therefrom,  whether  or  not 
participating  in  the  particular  rate  from  which  the  individual  overcharge  re- 
sulted. We  can  not  concur  in  so  broad  a  view  the  liability  of  the  defendants.  We 
do  not  think  those  carriers  who  received  no  part  of  the  charges  and  who  did  not 
participate  in  the  movement  of  the  commodity  should  be  liable  to  refund  the 
whole  or  any  part  of  the  rate  for  the  movement  of  a  shipment  in  which  they  did 
not  participate.  We  think  that  the  liability  is  restricted  to  those  carriers  who 
participated  in  the  transportation  of  the  lumber  via  their  respective  routes  over 
which  the  several  shipments  moved,  and  who  shared  in  the  transportation  charges 
therefor,  and  that  such  carriers  are  jointly  and  severally  liable  to  the  persons 
found  to  be  entitled  to  the  refund." 

But  it  appears  to  be  unneccessary  that  all  of  the  carriers  operating 
the  through  route  should  be  before  the  Commission,  in  order  that 
reparation  be  awarded: 

INSTANCE. — In  Independent  Eefiner's  Asso.  v.  W.  N.  Y.  &  P.  E.  Co.  (6  I.  C. 
C.,  378)  it  was  held  that  the  several  defendants  forming  a  through  line  were 


PLEADING  AND  PRACTICE  133 

each  liable  for  the  amount  of  damages  proven  in  the  case  to  have  resulted  from 
a  violation  of  the  act  in  which  the  defendants  or  either  of  them  have  participated; 
and  that  it  is  unnecessary  that  all  the  offending  carriers  operating  over  a  particu- 
lar route  should  be  before  the  Commission  in  order  to  enable  it  to  award  repara- 
tion. 

A  claim  for  reparation  must  originate  in  a  bona  fide  cause : 

INSTANCE.— In  Forster  Bros.  Co.  v.  D.  S.  S.  &  A.  E.  Co.  (14  I.  C.  C.,  232) 
it  was  held  that  the  claim  for  reparation  must  originate  in  a  T)ona  fide  cause,  for 
the  Commission  will  not  consider  an  erroneous  rate  quotation  as  a  basis  for  an 
award  of  reparation,  although  the  complainant  be  damaged. 

But  all  claims  for  reparation,  however  meritorious,  will  not  be  en- 
tertained : 

INSTANCE. — In  Coomes  &  McGraw  v.  C.  M.  St.  P.  R.  Co.  (13  I.  C.  C.,  192) 
reparation  on  account  of  demurrage  charges  was  denied;  and  see  section  37. 

Reparation  may  be  awarded  by  the  consent  of  the  parties : 
INSTANCE. — In  Fain  &  Stamps  v.  A.  C.  L.  E.  Co.  (13  I.  C.  C.,  529)  a  consent 
order  awarding  reparation  and  establishing  a  rate  for  the  future  was  permitted. 

In  awarding  reparation,  the  Commission  exercises  a  discretion  as 
to  the  amount  thereof,  particularly  in  unjust  discrimination  cases; 
and  as  well  in  determining  the  time  from  which  damages  may  be 
awarded : 

INSTANCE. — In  Burgess  v.  Transcontinental  Freight  Bureau  (13  I.  C.  C.,  668) 
it  was  held  that  the  Commission  would  exercise  a  discretion  concerning  the  time 
from  which  reparation  would  be  awarded;  see  also,  Cattle  Eaisers'  Assn.  v.  M. 
K.  &  T.  E.  Co.  (13  I.  C.  C.,  418) ;  Thompson  L.  Co.  v.  I.  C.  E.  Co.  (13  I.  C.  C., 
657). 

Protest  is  not  necessary  to  entitle  a  complainant  to  reparation  in 
a  case  involving  an  unreasonable  rate: 

INSTANCE. — In  Baer  Bros.  M.  Co.  v.  M.  P.  E.  Co.  (13  I.  C.  C.,  329)  it  was  held 
that  protest  is  not  a  condition  precedent  to  a  recovery  of  reparation  for  exces- 
sive freight  charges,  occasioned  by  unreasonable  rates;  affirmed  in  Sou.  Pine  L. 
Assn.  v.  S.  E.  Co.  (14  I.  C.  C.,  195). 

In  cases  involving  reparation  due  to  unjust  discrimination  it  is 
frequently  impossible  to  attach  to  the  complaint  a  bill  of  particulars 
for  the  reason  that  the  damages  occasioned  by  the  alleged  wrongful 
acts  of  the  defendant  are  more  or  less  speculative.79  The  complain- 
ant will  be  permitted  to  show  that  others  similarly  situated  were 
favored  by  the  carrier  and  the  resulting  prejudice  to  the  complain- 
ant, but  the  measure  of  damages  is  not  so  easy  to  determine;  for 
example,  if  it  be  a  question  of  supply  of  cars  the  Commission  must 
go  into  the  domain  of  what  volume  and  quantity  of  the  commodity 
the  complainant  could  have  supplied  had  the  equipment  been  fur- 
nished ;  this  necessarily  involves  the  prospective  profit  which  the  com- 

T6Eeparation  for  speculative  damages  will  not  be  awarded  (Frye  &  Bruhn  v. 
N;  P.  E.  Co.,  13  L  C.  C.,  501). 


134  PLEADING  AND  PRACTICE 

plainant  would  have  made  upon  the  shipment — an  uncertain  amount 
— but,  if  the  circumstances  of  the  case  are  such  that  he  has  been  sued 
by  vendees  in  respect  of  contracts  made,  the  computation  of  damages 
is  easier  made." 

Reparation  will  not  be  awarded  where  the  damages  are  speculative 
or  remote : 

INSTANCE. — In  Perry  v.  F.  C.  &  P.  E.  Co.  (  5  I.  C.  C.,  97)  where  it  was  alleged 
that  the  defendant's  rates  were  so  unreasonable  that  the  complainant  could  not 
profitably  pick  and  market  his  crop  it  was  held,  although  this  be  a  fact,  it  would 
not  entitle  him  to  reparation  for  the  loss  thereby  sustained  because  such  damages 
would  be  too  speculative,  uncertain  and  remote.  Also  Frye  &  Bruhn  v.  N.  P.  B. 
Co.  (13  I.  C.  C.,  501). 

But  if  the  damages  are  susceptible  of  computation,  reparation  may 
be  awarded : 

INSTANCE.— In  Pitts  &  Son  v.  A.  T.  &  S.  F.  E.  Co.  (  10  I.  C.  C.,  691)  where 
a  complainant  made  several  shipments  of  hay  on  which  was  charged  a  through 
rate  greater  than  the  sum  of  locals  the  Commission  awarded  reparation  in  differ- 
ent amounts  against  each  of  two  carriers,  reducing  the  rate  paid  to  the  sum  of 
locals. 

But  not  unless  asked  for  in  the  petition : 

INSTANCE.— In  N.  O.  C.  Ex.  v.  L.  &  N.  E.  Co.  (4  I.  C.  C.,  694)  it  was  held  that 
where  the  complaint  did  not  ask  for  reparation  and  although  the  carrier  had 
corrected  the  inequality  of  rates  complained  of  no  order  awarding  reparation 
would  be  issued. 

The  right  of  members  of  an  association  of  dealers  to  reparation  is 
dependent  in  the  first  instance  upon  the  complaint  filed.  It  should 
allege  that  the  complaint  is  filed  for  and  on  behalf  of  the  several 
members  of  the  association  (whose  names  and  addresses  it  is  advisa- 
ble to  give),  and  distinctly  claim  reparation  for  each  of  them.  With 
such  a  petition  the  several  members  may  individually  file  intervening 
petitions,  at  any  time  after  filing  complaint,  setting  out  the  ship- 
ments with  sufficient  detail  to  apprise  the  defendants  of  the  claim  of 
each;  supplemental  statements  of  shipments  may  be  filed  with  the 
Commission  from  time  to  time  in  order  that  the  statute  of  limitations 
may  not  run.™ 

Intervening  petitions  and  particulars  of  shipments  will  prevent  the 
running  of  the  statute  of  limitations : 

INSTANCE. — In  Cattle  Eaisers'  Assn.  v.  C.  B.  &  Q.  E.  Co.  (10  I.  C.  C.,  83) 
where  an  intervening  petition  did  not  claim  reparation  the  Commission  said:  "If 

t"  See  Glade  Coal  Co.  v.  B.  &  O.  E.  Co.  (10  I.  C.  C.,  226)  where  the  reparation 
is  based  upon  the  amount  of  coal  ' '  complainants  could  have  mined  and  shipped ; ' ' 
also,  Eichmond  Eltr.  Co.  v.  P.  M.  E.  Co.  (10  I.  C.  C.,  629)  where  the  quantity 
of  hay  which  the  complainant  had  for  shipment  and  for  which  cars  were  not 
furnished  was  proven,  and  in  general  terms  the  loss  resulting  from  nonshipment, 
but  proof  was  lacking  respecting  the  discrimination  against  the  complainant,  i. 
e.,  the  furnishing  ef  cars  for  the  shipment  of  hay  to  complainants'  competitors. 
Reparation  was  also  denied  because  of  insufficient  proof  in  Farrer  v.  S.  E.  Co. 
(11  I.  C.  C.,  640). 
Ti  Se«  section  88,  ante,  for  practice  in  filing  supplemental  bills  of  particulars. 


PLEADING  AND  PRACTICE  135 

that  association  desired  to  so  amend  its  petition  at  the  present  time  as  to  ask  for 
reparation  we  should  probably  permit  the  amendment.  Our  impression  is  that 
such  an  amendment  would  introduce  a  new  cause  of  action  and  that  the  date  of 
the  amendment  ought  probably  to  be  regarded  as  the  beginning  of  proceedings 
for  the  recovery  of  reparation  by  the  members  of  that  association,  but  we  should 
be  inclined  to  receive  proof  of  damages  accruing  at  all  times  since  the  imposition 
of  the  terminal  charge,  separating  the  items  in  such  way  that  the  court  might 
finally  pronounce  the  proper  judgment." 

Cases  will  not  be  reopened  for  the  purpose  of  presenting  stale  de- 
mands : 

INSTANCE.— In  Eice,  Eobinson  &  Witherop  v.  W.  N.  Y.  &  P.  E.  Co.  (  6  I.  C.  C., 
455)  it  was  held  that  a  case  would  not  be  reopened  in  a  supplemental  proceeding 
brought  only  for  the  purpose  of  securing  reparation,  for,  as  the  reparation  de- 
manded resulted  from  practices  found  unlawful  in  a  decision  made  several  years 
prior,  it  would  be  unjust  to  the  carriers  to  subject  them  to  further  requirements 
in  respect  of  such  violations. 

Nor  should  complainants  ask  reparation  on  acount  of  unreasonable 
rates  when  the  demand  is  stale : 

INSTANCE. — In  Burgess  v.  Transcontinental  Freight  Bureau  (13  I.  C.  C.,  668) 
the  Commission  said:  "Neither  should  these  complainants  be  permitted  to  slum- 
ber upon  their  rights  and  to  accumulate  against  these  defendants  a  claim  for 
damages  which  may  not  represent  in  its  entirety  an  actual  loss  to  the  complain- 
ants. The  burden  of  an  unjust  freight  rate  usually  rests  upon  the  consumer,  who 
can  not  and  does  not  recover.  Claims  for  reparation  should  therefore  be  promptly 
presented  and  actively  prosecuted." 

As  the  Commission  permits  an  assignee  of  claims  for  reparation  to 
recover,  it  is  the  custom  for  the  several  members  to  assign  their  claims 
to  some  official  of  the  association,  such  as  the  secretary,  who  can  file 
the  several  statements  of  shipments  as  exhibits  numbering  or  letter- 
ing them  serially. 

An  assignee  of  claims  for  reparation  may  present  them: 

INSTANCE. — In  Cattle  Eaisers'  Association  v.  C.  B.  &  Q.  E.  Co.  (  10  I.  C.  C., 
83)  the  Commission  dealt  at  length  concerning  the  relation  of  an  association  of 
dealers  to  a  claim  for  reparation  and  of  the  rights  of  the  members  to  be  awarded 
damages:  "The  allegations  in  the  present  case,  so  far  as  they  bear  upon  the 
question  of  reparation,  are  that  the  defendants  have  exacted  and  are  continuing 
to  exact  an  illegal  charge,  which  is  definitely  described,  and  that  the  complainant, 
in  so  far  as  it  has  been  or  may  be  compelled  to  pay  that  charge,  will  seek  a 
recovery  of  the  amount  paid.  Dates  and  amounts  are  not  given  nor  could  they 
have  been  for  the  most  part  at  the  time  the  complaint  was  filed,  since  the  claim 
for  reparation  looked  to  the  future  as  well  as  to  the  past,  but  there  is  a  definite 
statement  of  the  exact  thing  for  which  a  recovery  is  sought.  Passing  for  the 
moment  over  the  question  of  parties,  or  who  may  recover  damages  under  this  com- 
plaint, we  think  the  allegations  are  plainly  sufficient.  The  information  which 
is  furnished  by  this  complaint  is  to  every  practical  intent  more  definite  and  more 
extensive  than  that  furnished  by  the  common  counts  in  an  action  at  law.  We 
must  not  be  understood  that  these  defendants  should  be  compelled  to  go  to  trial 
upon  the  subject  of  reparation  in  the  present  state  of  this  record.  Before  then 
a  specification  should  be  filed  showing  in  detail  the  amounts  for  which  a  recovery 


136  PLEADING  AND  PRACTICE 

is  sought.  Up  to  the  present  time  no  such  specification  has  been  asked  for  and 
we  can  not  perceive  that  the  defendants  have  been  in  any  way  prejudiced  by  fail- 
ure to  file  one.  They  have  been  advised  of  the  precise  nature  of  the  claim  of  the 
complainants  and  their  own  records  show  every  instance  in  which  this  payment 
has  been  made.  If  they  have  suffered  the  destruction  of  any  of  those  records  it 
has  been  with  full  notice  of  their  materiality. 

"A  more  serious  question  is,  are  there  any  proper  parties  in  this  proceeding  to 
whom  damages  can  be  awarded,  and  if  not  can  the  persons  who  are  entitled  to 
these  damages  become  parties  at  the  present  time.  Neither  the  Commission  nor 
the  courts  have  ever  had  occasion  to  pass  upon  this  exact  question  so  far  as  can 
be  ascertained.  In  deciding  it,  the  act  itself  must  be  our  guide." 

After  considering  sections  8  and  sections  12  to  16  inclusive,  the  Commission 
said: 

"To  properly  understand  the  application  of  these  sections  it  is  necessary  to 
have  in  mind  the  subject-matter  to  which  they  were  intended  to  apply,  the  pecu- 
liar conditions  which  they  were  framed  to  meet.  Giving  attention  to  the  damages 
arising  out  of  the  exaction  of  an  unreasonable  rate,  it  is  evident  that  the  carrier 
and  the  shipper  do  not  stand  upon  an  equality.  The  rate  is  paid  by  thousands 
of  different  persons;  it  is  received  by  but  one.  The  amount  paid  by  any  indivi- 
dual shipper  is  usually  small;  the  total  amount  received  by  the  carrier  may  be 
enormous.  Consider  by  way  of  illustration  the  case  before  us.  The  illegal  ex- 
action is  a  single  dollar  upon  a  carload.  To  the  very  largest  shipper  this  can 
hardly  amount  to  more  than  a  few  hundred  dollars,  while  to  the  carrier  in  the 
aggregate  it  approximates  a  quarter  of  a  million  dollars  annually.  The  shipper 
is  usually  of  small  means,  the  railway  of  vast  resources.  It  is  plain  that  the  mere 
right  to  sue  in  court  and  recover  back  an  unreasonable  rate  affords  the  public  in 
most  cases  no  substantial  protection.  The  one  who  pays  the  freight  can  not  afford 
to  sue;  will  not  sue,  as  the  history  of  a  half  century  proves.  While  the  exactions 
of  railroads  during  that  period  have  been  sufficient  to  produce  political  revolu- 
tions, there  are  few,  if  any  instances  in  which  a  suit  to  recover  an  unreasonable 
rate  has  ever  been  prosecuted  to  final  judgment.  Beyond  question  one  of  the 
purposes  of  this  act  was  to  provide  a  means  for  the  protection  of  the  public 
against  the  exactions  of  railways,  and  one  method  adopted  for  the  accomplish- 
ment of  this  purpose  was  to  permit  those  who  have  a  common  interest  to  com- 
bine in  the  prosecution  of  that  interest." 

And  again :  ' '  This  association  is  a  proper  party  complainant.  It  filed  its  com- 
plaint in  due  form  of  law  alleging,  among  other  things,  that  its  members  were 
being  compelled  to  pay  this  illegal  charge  and  asking  that  the  carriers  be  ordered 
to  make  restitution  to  them.  We  think  that  under  that  complaint  the  associa- 
tion should  be  permitted  to  show  that  its  members  have  sustained  this  damage, 
and  that  when  this  has  been  done  it  will  be  our  duty  to  make  an  order  upon  the 
carriers  for  the  repayment  of  these  exactions.  It  will  have  appeared  in  the  in- 
vestigation of  this  complaint,  upon  lines  entirely  within  the  original  complaint, 
that  damage  has  been  sustained  by  certain  parties  who  are  thereupon  entitled  to 
an  order  for  reparation.  Unless  this  can  be  done  it  is  difficult  to  see  what  ad- 
vantage is  offered  by  proceeding  before  the  Commission  in  the  collection  of  dam- 
ages. No  counsel  fee  is  allowed  and  subsequent  suit  must  be  brought  in  court 
to  enforce  the  order.  While  this  question  has  never  been  formally  discussed  and 
decided  by  the  Commission,  hitherto  it  has  been  our  practice  to  order  reparation 
in  behalf  of  the  members  of  complaining  associations.  (Independent  Eefiners' 
Asso.  v.  W.  N.  Y.  &  P.  E.  Co.  6  1  C.  C.,  378;  Board  of  Trade  of  Lynchburg 
v.  O.  D.  S.  S.  Co.,  6  I.  C.  C.,  633.) 

"Since  the  law  in  this  respect  is  unsettled  and  in  order  that  all  phases  of  this 


PLEADING  AND  PRACTICE  137 

question  may  be  presented  to  the  court  it  would  probably  be  well  for  the  mem- 
bers of  this  association  who  seek  damages,  to  file  a  claim  in  the  nature  of  an  in- 
tervening petition  stating  that  they  are  members  of  the  association,  have  paid  the 
charges  in  question  and  seek  to  recover  the  same  in  this  suit.  Such  statement 
should  also  be  accompanied  by  a  specification  giving  as  definitely  as  possible 
the  dates  and  amounts  paid." 

And  in  the  same  ease,  it  was  said:  "We  will  allow  damages  in  favor  of  the 
members  of  the  Cattle  Eaisers'  Association  of  Texas  from  all  territory  down  to 
the  reduction  of  1896,  and  from  territory  to  which  that  reduction  did  not  apply 
down  to  the  present  time.  There  may  be  some  question  whether  these  damages 
should  extend  beyond  the  date  of  our  original  order,  but  we  think  that  the  pre- 
sumption is  that  the  condition  of  things  continues  as  it  then  existed,  and  that  the 
complainants  should  be  allowed  damages  in  this  accounting  up  to  the  date  of  hear- 
ing. Those  accruing  before  and  those  since  the  order  should,  however,  be  kept 
separate  so  that,  if  this  opinion  turns  out  to  be  wrong,  the  whole  order  will  not 
be  vitiated.  Since  conditions  may  have  changed  since  the  date  of  that  order  the 
defendants  will  be  allowed  to  show,  if  they  desire,  such  subsequent  facts  as  make 
now  the  entire  through  rate,  including  the  terminal  charge,  a  reasonable  one." 

Sec.  121.  Practice  in  applications  for  relief  under  the  long  and  short 
haul  section. — Applications  of  a  carrier  for  relief  from  the  opera- 
tions of  the  fourth  section,  under  the  proviso  thereof,  are  made  by 
petition,  which  must  be  verified,79  setting  up  the  facts  and  circum- 
stances which  it  is  claimed  will  justify  the  relief  sought;  under  the 
provisions  of  the  statute  the  Commission  is  required  to  make  investi- 
gation,80 for  it  is  only  after  investigation  that  the  Commission  is  au- 
thorized to  permit  the  carrier  to  charge  less  for  the  longer  than  for 
the  shorter  distance  for  the  transportation  of  passengers  or  like  kind 
of  property,  under  substantially  similar  circumstances  and  condi- 
tions, for  a  shorter  than  for  a  longer  distance  over  the  same  line,  in 
the  same  direction,  the  shorter  being  included  within  the  longer  dis- 
tance. 

As  the  Commission  is  authorized  to  grant  the  relief  only  "in  spe- 
cial cases"  !1  it  follows  that  each  case  must  be  determined  upon  its 
own  merits  and  in  connection  with  the  special  circumstances  surround- 
ing it;  the  Commission  upon  application  made  will  consider  not  only 
the  features  of  the  case  but  keep  in  view  the  objects  for  which  the  law 
was  enacted. 

An  application  for  relief  from  the  operation  of  the  fourth  section 
must  be  direct  and  for  the  purpose;  thus,  where  carriers  defendant 
offer  to  reduce  rates  complained  of  provided  the  Commission  would 
relieve  them  from  the  operation  of  the  fourth  section,  it  was  held  that 
such  action  by  the  defendants  is  not  an  application  for  an  order  for 
relief  under  the  provisions  of  the  long  and  short  haul  clause.82 

The  order  granting  the  application  is  usually  temporary  and  may 

TOReS.  P.  R.  Co.  (1  I.  C.  C.,  6). 

80  Proviso,  sec.  4  (Re  S.  P.  R.  Co.,  1  I.  C.  C.,  6). 

81  Be  C.  H.  &  D.  R.  Co.  (6  I.  C.  C.,  323). 

83  Col.  F.  &  I.  Co.  v.  S.  P.  Co.  (6  I.  C.  C.,  488). 


138  PLEADING  AND  PRACTICE 

have  no  special  time  stated,88  or,  if  to  meet  some  particular  contin- 
gency which  will  likely  disappear  within  an  ascertainable  time,  the 
order  may  be  made  effective  for  a  definite  period. 

If  the  operation  of  the  fourth  section  of  the  statute  creates  a  hard- 
ship, the  carrier  should  apply  to  the  Commission  as  provided  in  the 
proviso  to  that  section : 

INSTANCE. — In  Fewell  v.  E.  &  D.  E.  Co.  (7  I.  C.  C.,  354)  the  Commission  held 
that  any  injustice  or  undue  hardship  which  might  result  to  carriers  from  com- 
pliance with  the  fourth  section  of  the  statute  is  removable  by  the  Commission  in 
the  manner  pointed  out  by  the  proviso  clause  of  the  section. 

Sec.  122.  Dismissal  of  cases  at  the  request  of  the  parties. — Ordinarily, 
at  the  request  of  a  party  complainant  to  a  formal  complaint  the  pro- 
ceeding will  be  dismissed  if  the  request  be  made  before  answer,  and 
after  answer  upon  the  conditions  prescribed  by  the  Commission. 
These  conditions  are  that  if  relief  has  been  granted  by  the  carrier,  the 
record  of  the  case  shall  show  the  relief  granted  and  an  undertaking  on 
behalf  of  the  defendant  that  the  relief  granted  will  be  available  to 
others  situated  similarly  as  is  the  complainant,  and  that  the  relief  will 
be  in  force  and  effect  for  a  period  of  at  least  two  years.  Thus,  where 
a  complaint  is  brought  alleging  unreasonable  rates  and  reparation  be 
not  prayed  for  and  defendants  reduce  the  rate,  the  new  rate  must 
apply  to  all  situated  as  is  the  complainant  and  the  new  rate  must  be 
in  force  and  effect  at  least  two  years.  The  time  required  in  which  the 
new  rate  must  be  in  force  and  effect,  two  years,  is  doubtless  taken 
from  the  language  of  the  statute  in  section  15  providing  that  all 
orders  of  the  Commission  shall  continue  in  force  and  effect  for  such 
period  and  time  not  exceeding  two  years,  as  shall  be  prescribed  in  the 
order  of  the  Commission. 

If  the  complainant  claims  and  prays  for  reparation  the  Commis- 
sion will  not,  even  at  the  request  of  both  parties,  enter  an  order  di- 
recting or  permitting  the  carrier  to  pay  reparation  unless  there  be 
filed  in  the  proceeding  a  stipulation  showing  the  amount  of  repara- 
tion to  be  awarded.  It  is  required  that  this  stipulation  shall  contain 
a  full  and  complete  description  of  each  shipment  upon  which  over- 
charge is  claimed,  and  must  show  in  each  instance  date  of  shipment,  car 
initials,  car  number,  weight  of  shipment,  rate  applied,  total  charges 
paid,  and  overcharge  claimed.  Such  stipulations  must  be  under  oath 
of  persons  competent  to  make  an  affidavit  as  to  the  contents  of  the 
stipulation,  both  on  behalf  of  the  complainant  and  also  on  behalf  of 
the  defendant. 

Sec.  123.  Refund  of  overcharges  through  error. — Through  error  of 
applying  a  rate  greater  than  the  filed  and  published  tariff  carriers  are 
frequently  willing  to  make  a  refund  of  the  excess  freight.  Such  re- 

"Be  S.  E.  Co.  (not  reported,  1896),  re  G.  N.  E.  Co.  (not  reported),  re  D.  L. 
&  W.  E.  Co.  (not  reported),  re  S.  P.  Co.,  60  days  (not  reported). 


PLEADING  AND  PRACTICE  139 

fund  is  only  permitted  upon  a  verified  statement  showing  the  date 
and  character  of  shipment,  weight,  consignor,  consignee,  rate  applied, 
and  charges  collected  and  proper  rate  and  amount  of  refund  pro- 
posed. For  this  purpose  carriers  are  expected  to  use  the  form  pre- 
scribed by  the  Commission  (see  Form  lla,  Appendix). 

Sec.  124.  Orders  of  the  Commission. — The  order  of  the  Commission 
may  be  either  interlocutory  or  final. 

Interlocutory  orders  are  those  passed  pending  the  hearing,  such  as 
order  permitting  intervention,  order  for  answer,  fixing  date  of  hear- 
ing, of  argument,  etc. 

Final  orders  are  those  passed  after  or  concurrent  with  opinion  ren- 
dered in  the  case.  Such  orders  are  not  final  in  the  sense  that  no 
other  proceedings  can  be  predicated  thereon,  for  one  may  apply  for  a 
rehearing  (see  section  166)  or  there  may  be  proceedings  in  the 
Federal  courts  to  enforce  or  set  aside  or  annul  them. 

The  orders  of  the  Commission  after  opinion  take  such  form  and  are 
in  such  language  as  will  secure  the  proper  disposition  of  the  matter 
in  accordance  with  the  opinion  in  the  case.  The  order  may  be  for  va- 
rious purposes :  dismissing  the  petition ;  dismissing  the  petition,  with- 
out prejudice ;  "*  establishing  through  route  and  joint  rates ;  command- 
ing the  defendant  to  cease  and  desist  from  a  rate  or  practice,  and  re- 
quiring it  to  publish  and  charge  another  rate  or  establish  a  practice; 
fixing  the  classification  of  a  commodity;  awarding  reparation.  The 
order  may  be  in  a  sense  a  composite  one,88  for  it  may  grant  relief  as 
against  all  defendants  or  as  against  some,  and  dismiss  as  to  others,  or 

**  Orders  dismissing  the  petition  without  prejudice  appear  to  be  of  two  kinds, 
e.  g.  as  in  Harrell  v.  M.  K.  &  T.  B.  Co.  (12  I.  C.  C.,  28),  where  the  order  was  that 
the  proceeding  be  "dismissed  without  prejudice  to  the  right  of  complainant  or 
any  other  person  to  file  complaint  alleging  the  unreasonableness  of  the  rate  in- 
volved herein,  in  the  event  that  such  rate  shall  become  of  actual  consequence  to 
shippers  and  consignees ; "  or,  as  in  Johnston-Larmier  D.  G.  Co.  v.  W.  B.  Co. 
(12  I.  C.  C.,  52),  where  for  defect  of  parties  it  was  ordered:  "that  the  complaint 
in  this  proceeding  be  and  is  hereby  dismissed  without  prejudice."  In  either 
event,  the  complainant,  if  able  to  obviate  the  defects  of  pleading  or  evidence,  could 
proceed  anew;  for  such  an  order  could  not  operate  as  a  bar  to  the  same  claim, 
seeking  the  same  relief,  if  rested  on  different  allegations  of  facts.  See  Mobile 
v.  Kimball  (102  U.  S.,  691). 

*  For  the  form  of  various  orders  see  establishing  through  routes  and  rates 
(Cattle  Baisers'  Assn.  v.  G.  H.  &  S.  A.  E.  Co.  (12  I.  C.  C.,  20) ;  awarding  repara- 
tion (Blackwell  M.  Co.  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.,  24)  ;  dismissing  with- 
out prejudice  (Harrell  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.,  28)  ;  Johnston-Larimer 

D.  G.  Co.  v.  W.  E.  Co.  (12  I.  C.  C.,  52) ;    dismissing  complaint  (Durham  v.  I.  C. 

E.  Co.,  12  I.  C.  C.,  38) ;   commanding  the  defendant  to  cease  and  desist  from 
charging  one  rate  and  requiring  it  to  publish  and  exact  another  (Johnston-Lari- 
mer D.  G.  Co.  v.  A.  T.  &.  S.  F.  E.  Co.,  12  I.  C.  C.,  48) ;    commanding  a  carrier 
to  cease  and  desist  from  charging  one  rate  and  requiring  it  to  publish  and  exact 
another,  and  awarding  reparation  (Texas  Cement  Plaster  Co.  v.  St.  L.  &  S.  F.  E. 
Co.,  12  I.  C.  C.,  68) ;  commanding  a  carrier  to  cease  and  desist  from  a  practice 
(Preston  &  Davis  v.  D.  L.  &  W.  E.  Co.,  12  I.  C.  C.,  115) ;  fixing  the  classifica- 
tion of  an  article  (Van  Camp  Burial  Vault  Co.  v.  C.  L  &  L.  E.  Co.,  12  I.  C.  C., 
80) ;    awarding  reparation  as  to  a   defendant   and  dismissing  as  to  the  others 
(Am.  Grass  Twine  Co.  v.  C.  St.  P.  M.  &  0.  E.  Co.,  12  I.  C.  C.,  141)  ;  commanding 
a  defendant  to  cease  and  desist  from  charging  one  rate  and  holding  the  case 


140  PLEADING  AND  PRACTICE 

it  may  command  several  things  to  be  refrained  from  or  to  be  done. 

Orders  are  prepared  in  the  office  of  the  Commission  and  without 
consultation  with  the  attorneys  in  the  case;  orders  are  not  always 
passed  concurrently  with  the  rendering  of  the  opinion  but  the  usual 
rule  is  that  the  order  is  drawn  and  made  a  part  of  the  opinion  at 
the  time  the  opinion  is  made  public.  The  order  is  not,  however,  made 
a  part  of  the  printed  decision.86 

The  Commission  outlined  the  kinds  of  orders  which  it  was  author- 
ized to  issue  under  the  former  act  in  Cattle  Raisers'  Assn.  v.  C.  B.  & 
Q.  K.  Co.  (10  I.  C.  C.,  83),  as  follows: 

"This  Commission  may  under  the  act  make  orders  of  two  kinds.  It  may  make 
an  administrative  order  which  refers  to  the  future,  or  it  may  award  damages  for 
what  has  transpired  in  the  past.  The  purpose  and  scope  of  these  two  orders  is 
entirely  different.  The  methods  of  enforcing  them  are  equally  distinct.  In  one 
case  application  is  made  to  a  court  of  equity  which  determines  all 
questions  of  fact  and  employs,  if  need  be,  its  mandatory  powers  in  the 
enforcement  of  the  orders.  In  the  other  case  a  suit  at  law  is  brought,  in  which 
the  issue  of  fact  is  decided  by  jury.  These  two  orders  may  be  made  in  the 
same  case,  but  they  are  in  no  way  connected  and  the  right  to  make  one  is  not 
necessarily  conclusive  of  the  right  to  make  the  other.  If,  for  example,  upon  a  com- 
plaint alleging  the  unreasonableness  of  a  rate  and  demanding  reparation  the  Com- 
mission should  find  the  rate  unreasonable  and  order  the  carrier  to  charge  for  the 
future  a  given  rate  which  was  determined  to  be  reasonable,  that  order  would  be 
invalid  because  beyond  the  power  of  the  Commission,  and  the  court  would  decline 
to  enforce  it,  but  the  refusal  of  the  court  to  enforce  such  an  order  would  be  no 
bar  to  the  right  of  the  Commission  to  grant  reparation  to  the  extent  that  the 
carrier  had  exacted  more  than  a  reasonable  rate  in  the  past. ' ' 

Orders  will  not  be  granted  where  after  hearing  and  submission 
but  before  the  decision  the  defendant  concedes  the  relief  sought ; "  nor 
where  issues  have  been  made  and  no  proofs  are  offered ; ""  nor  where 
the  answer  of  the  defendant  must  be  assumed  to  satisfy  the  complain- 
ant *  nor  where  the  cause  of  complaint  had  been  removed  by  the  action 
of  a  substituted  party  defendant ;  *°  nor  where  an  inequality  of  rates 
had  been  corrected.91  Yet  an  order  will  issue  as  to  part  of  the  griev- 
ance where  only  part  has  been  corrected.82 

Sec.  125.  Duration  of  orders. — Orders  made  in  pursuance  of  section 
15  of  the  act,8*  being  orders  to  cease  and  desist  from  charging  certain 

open  for  reparation  (Society  of  Am.  Florists  v.  U.  S.  Exp.  Co.  12  I.  C.  C.,  121) ; 
commanding  part  of  the  defendants  to  cease  and  desist  from  charging  one  rate 
and  requiring  them  to  publish  and  exact  another,  and  dismissing  as  to  other  de- 
fendants (Eau.  v.  P.  E.  Co.,  12  I.  C.  C.,  200). 

**  The  orders  of  the  Commission  in  a  few  cases  will  be  found  in  Volume  12 
I.  C.  C.  (Lawyers  Co-operative  Publishing  Co.  edition). 

nM.  &  J.  Union  v.  M.  &  St.  L.  E.  Co.  (1  I.  C.  C.,  227). 

88  Leonard  v.  U.  P.  E.  Co.  (1  I.  C.  C.,  185). 

89  Jackson  v.  St.  L.  A.  &  T.  E.  Co.  (1  I.  C.  C.,  184). 
•°Boyer  v.  C.  O.  &  S.  W.  E.  Co.  (7  L  C.  C.,  55). 

81  N.  O.  C.  Ex.  v.  L.  N.  O.  &  T.  P.  E,  Co.  (4  I.  C.  C.,  694),  Mich.  Box  Co.  v. 
F.  &  P.  M.  E.  Co.  (6  I.  C.  C.,  335). 

"Eice  v.  St.  S.  W.  E.  Co.  (5  I.  C.  C.,  660). 
*  Appendix. 


PLEADING  AND  PRACTICE  141 

named  rates  or  enforcing  certain  practices  and  fixing  rates  or  prac- 
tices, take  effect  at  such  reasonable  time  as  the  Commission  may  desig- 
nate, but  not  in  less  than  thirty  days  and  they  are  to  continue  in  force 
not  more  than  two  years.81  Thus,  the  discretion  of  the  Commission 
concerning  the  time  at  which  the  order,  other  than  for  the  payment  of 
money,  may  take  effect  is  limited;  the  defendant  is  given  by  the 
statute  thirty  days  in  which  to  determine  whether  or  not  it  will  obey 
an  order  or  contest  it  and  it  is  also  safeguarded  in  that  an  order  shall 
not  continue  for  a  period  longer  than  two  years.  Such  orders  usually 
are  made  to  take  effect  about  forty-five  days  from  the  date  thereof 
and  are  made  to  be  in  force  and  effect  for  the  maximum  period  of  two 
years,  the  additional  time  of  taking  effect  being  granted  for  the  pur- 
pose of  permitting  the  carrier  to  prepare  schedules  and  file  them.  An 
order  is  frequently  accompanied  by  permission  to  file  and  make  ef- 
fective the  new  rates  and  practices  in  less  than  the  statutory  period 
of  thirty  days  as  provided  in  section  6. 

Where  the  defendant  had  satisfied  the  complaint  and  changed  the 
rate  complained  of,  the  Commission  required  that  the  new  rate  should 
be  kept  in  force  and  effect  for  a  period  of  two  years.95 

Orders  for  the  payment  of  money  are  not  subject  to  the  time 
limit  provided  in  section  15,  being  especially  exempted;  such 
order  usually  provides  that  payment  of  the  amount  found  to  be  due 
by  way  of  reparation  shall  be  made  on  or  before  a  day  named,  the  date 
being  about  forty-five  days  from  the  date  of  the  order. 

"In  I.  C.  C.  v.  L.  &  N.  E.  Co.  (73  Fed.,  409),  held  under  the  former  act  that 
it  is  no  objection  to  an  order  of  the  Commission,  that  it  is  made  by  its  terms  to 
operate  indefinitely  without  any  reservation  or  power  to  modify. 

85  Ocheltree  G.  Co.  v.  C.  E.  I.  &  P.  E.  Co.  (13  I.  C.  C.,  238) ;  but  the  time 
during  which  the  rate  should  be  kept  in  force  was  not  required  in  Bunch  v. 
C.  E.  I.  &  P.  E.  Co.  (13  I.  C.  C.,  377). 


CHAPTER  VII 
EVIDENCE  BEFORE  COMMISSION 


Sec.  126.  Application  of  the  rules  of  evidence. — None  of  the  techni- 
cal rules  of  evidence  applies  in  proceedings  before  the  Commission; 
in  fact,  the  rules  of  evidence  are  of  less  moment  before  the  Commis- 
sion than  before  legislative  committees,  boards  of  assessment,  or  admin- 
istrative bodies.  In  every  instance  the  Commission  seeks  the  facts  ger- 
mane to  the  inquiry,  paying  little  regard  to  the  canons  of  evidence. 
How  a  witness  may  know  the  facts,  in  what  manner  or  by  what  means 
he  becomes  possessed  of  the  knowledge  is  immaterial,  within  reasonable 
limits.  The  essential  item  is  the  fact  or  facts,  and  not  the  means  by 
which  they  have  been  acquired.  Upon  cross-examination  a  witness 
may  be  asked  how  he  knows  to  be  true  what  he  has  stated  and  the 
means  by  which  he  obtains  his  knowledge  affects  the  weight  of  his 
testimony  rather  than  his  competency  to  testify. 

Should  a  witness  be  interrogated  concerning  a  matter  not  within  the 
issue,  an  exception  will  avail  nothing  and  hence  the  plan  of  noting 
an  exception  is  not  indulged  in.  Not  infrequently  a  witness  is  asked 
concerning  a  matter  apparently  not  germane  to  the  inquiry;  unless 
such  matter  be  clearly  foreign  to  the  subject,  the  testimony  is  gen- 
erally received  for  what  it  may  be  worth.  At  times  such  testimony 
by  subsequent  evidence  becomes  relevant  and  even  material.  Un- 
less, however,  it  promises  an  advantage,  the  practitioner  will  refrain 
from  such  excursions  into  the  domain  not  bounded  by  the  merits  of  the 
inquiry. 

In  cases  before  the  Commission  there  is  a  necessity  for  liberality 
concerning  the  rules  of  evidence,  whether  one  consider  the  compe- 
tency of  the  witnesses  or  the  nature  of  the  testimony.  The  Commis- 
sion is  not  a  court,  and  one  of  the  reasons  frequently  alleged  for  con- 
trol over  interstate  carriers  by  a  Commission  is  the  inability  to  prove 
in  court  the  unreasonableness  of  rates,  applying  the  strict  rules  of 
evidence.  As  long  as  the  Commission  keeps  within  the  general  com- 
mon-law rules  of  evidence,  even  though  liberally  applied,  probably 
no  objection  can  be  made.  The  question  of  what  rules  of  evidence 
should  govern  the  Commission  has  not  been  adjudicated  by  the  courts. 
In  a  somewhat  similar  but  different  body  (the  Court  of  Claims), 
where  the  Congress  had  provided  no  rules  of  evidence,  the  court  held 


144  EVIDENCE  BEFORE  COMMISSION 

that  the  rules  of  evidence  as  found  in  the  common  law  ought  to  govern 
in  actions  before  it. 

The  common-law  rules  of  evidence  should  govern  in  the  absence  of 
statute : 

INSTANCE. — In  Moore  v.  TL  S.  (91  U.  S.,  270),  the  Supreme  Court  laid  down 
the  rules  by  which  the  Court  of  Claims  should  be  guided  in  accepting  and  re- 
jecting evidence  before  it:  "The  questions  are:  By  what  law  is  the  Court 
of  Claims  to  be  governed  in  this  respect?  May  it  adopt  its  own  rules  of  evi- 
dence! Or  is  it  to  be  governed  by  some  system  of  law!  In  our  opinion,  it  must 
be  governed  by  law;  and  we  know  of  no  system  of  law  by  which  it  should  be 
governed  other  than  the  common  law.  That  is  the  system  from  which  our 
judicial  ideas  and  legal  definitions  are  derived.  The  language  of  the  Constitution 
and  of  many  acts  of  Congress  could  not  be  understood  without  reference  to  the 
common  law.  The  great  majority  of  contracts  and  transactions  which  come  be- 
fore the  Court  of  Claims  for  adjudication  are  permeated  and  are  to  be  adjudged 
by  the  principles  of  the  common  law.  Cases  involving  the  principles  of  the  civil 
law  are  the  exceptions.  We  think  that  where  Congress  has  not  provided  and  no 
special  reason  demands  a  different  rule,  the  rules  of  evidence  as  found  in  the 
common  law  ought  to  govern  the  action  of  the  Court  of  Claims.  If  a  more 
liberal  rule  is  desirable,  it  is  for  Congress  to  declare  it  by  a  proper  enactment. ' ' 

Sec.  127.  Judicial  notice. — The  Commission  takes  judicial  notice  of 
all  facts  of  which  a  court  would  take  notice,  and  in  addition,  of  all 
tariffs,  reports  of  railways,  and  many  other  matters  essential  to  the 
proper  understanding  and  decision  of  the  case  as  presented.  Specific 
reference  to  the  tariff,  report,  or  other  matter  of  which  it  is  desired 
that  the  Commission  take  notice,  must  however  be  made  at  the  hear- 
ing, but  their  formal  introduction  in  evidence  is  not  necessary.1 

The  Commission  frequently  takes  judicial  notice  of  evidence  adduced 
in  other  proceedings,  opinion  in  which  has  not  as  yet  been  rendered — 
e.  g.,  if  there  be  an  investigation  brought  by  the  Commission  of  its 
own  motion  pending  and  the  same  questions  arise  in  the  proceeding 
on  formal  complaint,  facts  in  one  case  will  be  judicially  noticed  in 
the  other;  so  also,  if  the  two  cases  be  direct  proceedings  or  com- 
plaints. 

Evidence  introduced  in  one  case  may  be  used  in  another: 

INSTANCE.— In  Toledo  P.  Ex.  v.  L.  S.  &  M.  S.  E.  Co.  (  5  I.  C.  C.,  166)  the 
Commission  had  occasion  to  consider  whether  or  not  evidence  taken  in  other  simi- 
lar prior  cases  could  be  considered  in  a  pending  case.  Upon  agreement  of  counsel 
to  the  effect  that  the  evidence  in  the  two  cases  should  be  considered  in  connection 
with  the  determination  of  the  later  case,  which  agreement  counsel  attempted  to 
rescind,  the  Commission  said:  "To  avoid  further  delay  in  a  case,  already  un- 
avoidably long  delayed,  it  seems  proper  to  the  Commission  to  hold  that  the  case 
should  be  considered  upon  the  basis  of  the  original  agreement,  namely:  The  evi- 
dence offered  by  the  complainants,  including  the  depositions  taken  without  notice, 
and  the  evidence  offered  by  defendants,  including  the  evidence  taken  in  the 
Boston  Board  of  Commerce  cases.  As  to  the  propriety  of  this  course  and  as 
justifying  it,  the  following  suggestions  are  made:  The  facts  shown  by  the  whole 

1  Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  E.  Co.  (4  I.  C.  C.,  664). 


EVIDENCE  BEFORE  COMMISSION  145 

record  are  almost,  if  not  altogether,  either  admitted  or  established  by  uncontra- 
dicted  testimony.  The  hearing  being  an  investigation  held  for  the  purpose  of 
making  a  report,  upon  which  an  order  is  to  be  based,  the  ascertainment  of  the 
facts  rather  than  the  method  of  their  ascertainment  should  be  considered.  The 
evidence  seems  to  be  entirely  pertinent  to  the  inquiry  to  be  made,  and  the  agree- 
ment should  be  maintained,  especially  as  ample  opportunity  and  time  have  been 
given  to  allow  complainants  to  offer  any  additional  evidence  deemed  necessary." 
In  Hurlburt  v.  P.  E.  Co.  (2  I.  C.  C.,  130),  the  case  was  submitted  upon  the 
testimony  taken  in  Hurlburt  v.  L.  S.  &  M.  S.  E.  Co.  (2  I.  C.  C.,  122). 

Section  15  of  the  original  act  permitted  the  Commission  to  con- 
sider not  only  the  testimony  of  witnesses  but  it  was  also  held2  that 
under  this  section  it  was  undoubtedly  within  the  province  of  the 
Commission  to  consider,  in  any  case,  the  contracts  and  tariffs  which 
are  required  to  be  filed  with  the  Commission  as  provided  in  section  6. 

The  matters  of  which  the  Commission  will  take  judicial  notice  are : 
Matters  of  common  knowledge  in  general;  public  or  private  statutes; 
treaties  and  rights  thereunder;  municipal  ordinances;  foreign  laws; 
legislative  journals;  proceedings  and  decisions  of  courts  and  State 
railway  commissions;  the  official  decisions  and  acts  of  Federal  offi- 
cers; political  and  municipal  decisions;  geographical  facts,  including 
the  location  of  the  several  lines  of  railways  within  the  United  States 
and  adjacent  foreign  countries ;  and  the  customs  and  usages  generally 
in  practice  in  railway  management;  also  railway  reports. 

Sec.  128.  Nature  of  testimony  before  the  Commission. — Testimony  be- 
fore the  Commission,  in  nearly  all  cases  and  to  a  marked  degree,  is 
unique  in  that  it  is  expert  or  opinion  evidence.8  In  actions  involving 
rates  and  practices,  there  is  necessity  for  the  expert  and  opinion  evi- 
dence of  the  shipper  and  the  railway  traffic  manager ;  so,  also,  if  there 
be  under  consideration  undue  discrimination,  preference  or  advan- 
tage. If  the  proceeding  involve  the  making  of  switch  connections, 
the  engineering  expert  is  not  infrequently  required.  In  other  cases 
expert  and  opinion  evidence  may  or  may  not  be  necessary  according 
to  the  circumstances  of  the  particular  case. 

It  should  not  be  inferred  from  what  has  been  said,  that  only  opin- 
ion or  expert  evidence  is  admissible;  quite  the  contrary  is  the  case. 
The  testimony  of  a  witness  may  be  upon  the  facts,  as  such,  from 
which  the  witness  states  his  opinion ;  or,  he  may  state  his  opinion  and 
support  it  by  the  facts.* 

a  The  Commission  will  consider  as  in  evidence  without  formal  offer  contracts, 
tariffs,  and  schedules  filed  with  it  (Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  E.  Co., 
4  I.  C.  C.,  664)  ;  reference  to  the  contracts,  tariffs  and  schedules  ought,  however, 
to  be  made,  and  become  a  part  of  the  record. 

8  That  the  Commission  may  give  little  weight  to  the  statistics  and  opinions 
of  'statisticians,  see  the  opinion  in  Cattle  Eaisers'  Assn.  v.  M.  K.  &  T.  E.  Co. 
(13  I.  C.  C.,  418). 

*  On  the  general  subject  of  expert  and  opinion  evidence,  see  in  addition  to  the 
works  on  Evidence,  Eogers:  Expert  Testimony;  Lawson:  Expert  and  Opinion 
Evidence. 


146  EVIDENCE  BEFORE  COMMISSION 

The  General  Rules  of  Practice  respecting  witnesses  and  their  com- 
petency, as  laid  down  by  Lawson,5  if  followed,  will  be  of  advantage 
to  the  practitioner  and  prevent  the  attempted  introduction  of  im- 
proper evidence: 

Any  witness  is  competent  to  state  facts  perceptible  to  his  senses  and  not  in- 
volving matters  of  opinion; 

By  using  language  indicative  of  an  incompetent  opinion  or  conclusion,  a  wit- 
ness' evidence  is  not  inadmissable  if  it  appears  that  he  is  really  stating  a  fact; 

The  opinion  of  an  ordinary  witness  is  not  permitted  when  it  is  derived  from 
the  statements  of  others,  or  is  based  on  extraneous  circumstances; 

The  opinions  of  both  experts  and  nonexperts  should  have  weight  according  to 
their  opportunities  and  qualifications. 

Speaking  of  the  difference  in  the  character  of  the  testimony  re- 
quired to  test  the  reasonableness  of  an  entire  schedule  and  to  test  the 
reasonableness  of  a  particular  schedule,  the  Commission  said  (Frye  & 
Bruhn  v.  N.  P.  R.  Co.,  13  I.  C.  C.,  50)  : 

There  is  a  wide  difference  in  the  character  of  testimony  required  to  test  the 
reasonableness  of  an  entire  schedule  of  rates  covering  the  whole  traffic  of  a  par- 
ticular carrier  and  that  required  to  test  the  reasonableness  of  a  rate  on  a  par- 
ticular commodity  between  two  definite  points.  Whether  an  attack  upon  an  entire 
schedule  of  rates  is  well  founded  or  not  is  to  be  determined  largely  by  ascertain- 
ing whether  the  gross  amount  of  traffic  carried  on  those  rates  affords  the  carrier, 
above  its  operating  expenses  and  taxes,  a  reasonable  return  upon  the  fair  value 
of  its  property.  But  whether  it  lies  within  the  possibilities  of  some  system  of 
accounts  that  may  be  devised,  and  that  is  strongly  denied  by  eminent  writers  on 
railway  problems,  certainly  the  present  state  of  the  science  of  railway  accounting 
does  not  enable  us  upon  any  such  basis  to  fix  with  certainty  a  reasonable  rate 
upon  a  particular  commodity  between  two  points.  And  neither  the  complainant 
nor  the  defendants  have  pretended  to  analyze  the  operating  expenses  and  taxes 
of  the  defendants  with  a  view  to  assigning  to  the  particular  traffic  now  under 
consideration  a  definite  proportion  of  those  expenses  as  a  factor  for  fixing  a 
reasonable  rate.  We  are  left  by  both  parties  to  arrive  at  a  conclusion  as  to  the 
reasonableness  of  the  rate  complained  of,  solely,  as  counsel  for  the  complainant 
puts  it,  by  the  exercise  of  our  judgment,  enlightened  by  experience  and  by  such 
evidence  as  the  parties  have  adduced  that  tends  to  aid  us. 

Indicative  of  the  character  of  testimony  required  in  a  case  concern- 
ing unreasonable  rates,  the  following  elements  (Snyder:  Annotated 
Interstate  Commerce  Act,  p.  196;  cf.  Wentworth:  Interstate  Com- 
merce Law,  p.  21)  may  be  considered : 


1. 

Amount  of  through  and  local  busi- 

9. 

Cost  of  service. 

ness. 

10. 

Cost  of  local  business. 

2. 

Bonded  debt. 

11. 

Distance. 

3. 

Bulk. 

12. 

Dividend  on  capital  stock. 

4. 

Character   of   commodity. 

13. 

Empty  cars. 

5. 

Comparison  of  rates. 

14. 

Fixed  charges. 

6. 

Competition. 

15. 

Former  rates. 

7. 

Consequences  of  rate  changes. 

16. 

Geographical  situation. 

8. 

Cost  of  production. 

17. 

Initial  expenses. 

*  Lawaon :    Expert  and  Opinion  Evidence,  p.  603,  et  seq. 


EVIDENCE  BEFORE  COMMISSION  147 


18.  Market  cost. 

19.  Operating  expenses. 

20.  Other  articles  consumed. 

21.  Population  along  the  line. 

22.  Proportion  to  local  traffic. 

23.  Belative  reasonableness  of  rates. 

24.  Eelative  amount  of  through  and 

local  business. 

25.  Eeturn  loads. 

26.  Eevenue. 


27.  Kates,  prima  facie. 

28.  Eisk. 

29.  Special  train  rates. 

30.  Storage  capacity. 

31.  Unsettling  of  rates. 

32.  Use  to  the  public. 

33.  Value  of  freight. 

34.  Volume  of  business. 

35.  Weight. 


Sec.  129.  Qualification  of  witnesses. — It  is  not  often  that  any  ques- 
tion arises  concerning  the  qualification  of  witnesses  to  testify  before 
the  Commission.  Those  general  and  uniform  rules  which  are  appli- 
cable to  witnesses  before  the  Federal  courts  doubtless  would  be  used 
in  determining  their  qualifications  if  any  question  should  arise,  but 
not  the  special  and  uncommon  rules  laid  down  by  State  statutes,  but 
which  are  respected  by  the  Federal  courts  in  the  several  States.  In- 
terest in  the  proceeding,  race,  color,  sex,  or  religion  would  not  dis- 
qualify, but  should  self-confessed  turpitude,  insanity,  or  conviction  of 
perjury  be  apparent  they  would  probably  operate  as  a  disqualifica- 
tion. Disqualification  by  reason  of  infancy,  coverture,  or  alienage 
has  not  arisen  and  naturally  is  not  likely  to  arise,  owing  to  the  nature 
of  the  proceedings. 

The  competency  of  witnesses  in  Federal  courts  is  provided  for  by 
section  858,  Revised  Statutes,  as  amended  by  the  act  of  June  29,  1906, 
(34  Stat.  L.,  c.  3608,  p.  618)  : 

"The  competency  of  a  witness  to  testify  in  any  civil  action,  suit,  or  proceed- 
ing in  the  Courts  of  the  United  States  shall  be  determined  by  the  laws  of  the 
State  or  Territory  in  which  the  court  is  held. ' ' " 

As  the  Commission  has  its  principal  office  in  Washington,  perhaps 
the  rule  respecting  competency  of  witnesses  in  the  District  of  Colum- 
bia, binding  on  the  Supreme  Court  of  the  District  of  Columbia  (a 
court  of  the  United  States),  may  be  applicable.  Section  1063  of  the 
Code  of  Law  for  the  District  of  Columbia  provides : T 

Except  as  herein  elsewhere  provided,  no  person  shall  be  incompetent  to  testify 
in  any  civil  action  or  proceeding  by  reason  of  his  being  a  party  thereto  or  in- 
terested in  the  result  thereof;  but,  if  otherwise  competent  to  testify,  he  shall  be 
competent  to  give  evidence  on  his  own  behalf  and  competent  and  compellable  to 
give  evidence  on  behalf  of  any  other  party  to  such  action  or  proceeding. 


6  For  the  practice  prior  to  the  above  amendment,  see  Eose,  Federal  Procedure 
(section  1735). 

3  Conviction  of  crime,  other  than  perjury,  does  not  disqualify  (section  1067)  ; 
testimony  of  surviving  party  to  a  transaction  can  not  be  given,  unless  the  opposite 
party  first  testify  in  relation  to  same  (section  1064) ;  testimony,  given  when 
one  is  competent,  may  be  given  if  the  witness  becomes  incompetent,  in  proceed- 
ings between  the  same  parties  in  relation  to  the  same  matter  (section  1065). 


148  EVIDENCE  BEFORE  COMMISSION 

The  Federal  rule  respecting  incompetency  to  testify  because  of  con- 
viction of  perjury  is  section  5392,  U.  S.  Comp.  Stat.  1901,  p.  3653 : 

Every  person  (i.  e.,  guilty  of  perjury)  *  *  *  shall,  moreover,  hereafter  be 
incapable  of  giving  testimony  in  any  court  of  the  United  States  until  such  time 
as  the  judgment  against  him  is  reversed. 

The  maker  of  a  freight  classification  is  not  competent  to  interpret 
it ;  as  other  written  or  printed  documents  it  must  speak  for  itself : 

INSTANCE.— In  Hurlburt  v.  L.  S.  &  M.  8.  E.  Co.  (2  I.  C.  C.,  122)  it  was  held 
that  the  makers  of  a  classification  are  not  competent  to  testify  as  to  their  con- 
struction of  it.  The  Commission  said:  "A  classification  sheet  is  put  before  the 
public  for  its  information.  It  is  supposed  to  be  expressed  in  plain  terms,  so  that 
the  ordinary  business  man  can  understand  it,  and  in  connection  with  the  rate 
sheets,  can  determine  for  himself  what  he  can  be  lawfully  charged  for  transporta- 
tion. The  committee  who  prepared  this  classification  have  no  more  authority  in 
construction  than  anybody  else,  and  they  must  leave  the  document,  after  they 
have  given  it  to  the  public,  to  speak  for  itself." 

Sec.  130.  Subpoena  duces  tecum. — The  Commission  early  laid  down 
the  rules  under  which  it  would  issue  a  subpoena  duces  tecum  at  the 
request  of  a  party  to  a  proceeding  either  directed  to  strangers  or  to 
other  parties  or  their  agents.8 

A  complainant  had  made  an  application  for  a  subpoena  duces  tecum 
to  prominent  persons  not  parties  to  the  suit  and  also  to  the  agents  of 
the  defendant  carriers.  The  application  was  denied  both  as  against 
the  strangers  to  the  proceedings  and  against  the  parties.  The  Com- 
mission, after  considering  its  authority  as  conferred  by  the  act  to  reg- 
ulate commerce,  the  Revised  Statutes  upon  this  particular  subject, 
and  the  practice  in  Federal  courts,*  laid  down  the  rule  that  when 
directed  to  strangers  to  the  proceedings  the  application  should  be 
made  in  writing  and  specify  as  nearly  as  may  be  the  books,  papers, 
or  documents,  for  the  production  of  which  the  subpoena  is  desired,  the 
application  to  be  accompanied  by  an  affidavit  that  the  books,  papers 
and  documents  described  are  in  possession  of  the  witness  or  under  his 
control,  and  set  forth  facts  making  a  prima  facie  case  that  the  docu- 
ments contain  evidence  that  is  material  and  necessary  to  the  party 
applying. 

As  to  parties  to  the  proceedings,  and  particularly  defendant  car- 
riers, the  Commission  held  that  it  is  not  required  that  the  facts  show- 
ing the  prima  facie  case  need  be  so  strong  against  such  defendant  as 
against  strangers;  upon  the  theory  that  it  is  the  duty  of  the  Com- 
mission to  execute  and  enforce  the  law,  and  that  it  is  also  their  duty 
to  call  for  the  production  of  the  books  and  papers  of  the  carrier 
whenever  the  nature  of  the  inquiry  to  be  gone  into  is  such  as  to  ren- 
der their  production  necessary  or  proper. 

Where  a  complainant  shipper  sought  by  a  subpoena  duces  tecum  to 

•Bice  v.  C.  W.  &  B.  E.  Co.  (3  I.  C.  C.,  186). 
•U.  S.  v.  Babcock  (3  Dillon,  C.  C.,  566). 


EVIDENCE  BEFORE  COMMISSION  149 

obtain  a  contract  between  the  defendant  carrier  and  other  shippers, 
the  contracts  referring  to  the  rate  of  transportation  of  the  same  com- 
modity in  which  the  complainant  dealt,  the  application  was  denied 
on  the  ground  that  the  third  party  (other  shippers)  had  rights  which 
must  be  respected,  and  that  they  had  a  right  to  object  to  the  con- 
tracts being  produced.10 

Appreciating  the  burden  upon  carriers  in  producing  their  books 
and  papers,  perhaps  at  a  great  distance  from  the  place  where  such 
records  are  kept,  the  Commission  has  indicated  that  the  same  result 
might  be  reached  otherwise  than  by  the  subpoena  duces  tecum.  The 
Commission  said — 

there  are  several  modes  of  procedure  by  which  the  inconvenience  to  the  defendants 
of  producing  books,  and  the  delay  and  labor  of  going  over  their  entries  might 
be  avoided  by  petitioner.  If  one  or  more  witnesses  should  be  subpoenaed  from 
the  different  companies  proceeded  against,  and  a  notice  should  be  served  with  the 
subpoena  requiring  the  witnesses  to  furnish  the  published  rates  and  tariffs  of 
such  company  for  a  specified  period,  and  also  requiring  them  to  furnish  state- 
ments of  the  actual  charges  made,  and  car  facilities  furnished,  during  such 
period  to  the  Standard  Oil  Trust  and  the  others  named  in  this  application,  if 
different  from  the  published  tariffs  and  schedules,  it  would  probably  be  sufficient 
for  all  the  purposes  of  these  and  other  proceedings;  or,  if  the  parties  would  take 
depositions,  by  consent,  in  advance  of  the  hearing,  it  would  probably  answer  the 
same  purpose.11 

Applications  for  subpoenas  duces  tecum  have  not  been  frequent, 
attorneys  either  following  the  suggestion  just  laid  down,  or  at  the 
taking  of  testimony,  asking  the  officials  of  the  carriers  to  have  made 
up  certain  relevant  statements  from  the  records  of  the  carrier ;  and  the 
carriers  have  ordinarily  complied  with  such  requests  even  at  con- 
siderable expense. 

Sec.  131.  Evidence  under  the  pleadings. — The  rules  concerning  the 
character  of  evidence  admissible  under  the  pleadings  receive  little 
attention  in  proceedings  before  the  Commission.  The  complainant  is 
usually  permitted  to  introduce  any  testimony  which  may  tend  to 
show  either  what  he  had  alleged  to  be  the  facts,  or  other  facts  which 
may  constitute  a  violation  of  the  act  of  the  same  character  as  alleged. 
So,  also,  the  defendant  is  not  bound  by  the  defenses  similar  to  those 
pleaded.  The  liberality  of  the  practice  in  this  behalf  will  not  permit 
one  to  introduce  testimony  not  germane  to  the  controversy;  nor  will 
evidence  respecting  a  particular  fact  be  applied  to  other  facts  not 
included  in  the  allegations  of  the  complaint. 

Evidence  introduced  for  one  purpose  is  not  admissible  for  another : 
INSTANCE. — In  Business  Men's  Assn.  v.  C.  &  N.  W.  E.  Co.  (  2  I.  C.  C.,  73) 
where  evidence  had  been  introduced  by  a  party  and  he  had  been  permitted  to  do 
so  for  the  single  purpose  of  the  bearing  such  evidence  might  have  upon  the 
reasonableness  of  a  rate  and  it  being  inadmissable  for  any  other  purpose  but 
it  also  tended  to  show  other  facts,  it  was  held  that  it  would  be  improper  and  un- 

10  Haddock  v.  D.  L.  &  W.  B.  Co.  (4  I.  C.  C.,  296). 

11  Kice  v.  C.  W.  &  B.  E.  Co.  (3  I.  C.  C.,  186). 


150  EVIDENCE  BEFORE  COMMISSION 

just  to  the  carrier  to  consider  such  evidence  in  respect  to  the  other  facts,  because 
it  would  involve  a  collateral  inquiry  and  because  the  carrier  had  not  been  al- 
lowed to  controvert  the  testimony  as  applied  to  the  other  facts. 

And  evidence  of  one  fact  is  not  evidence  of  another,  as  the  er- 
roneous application  of  an  unlawful  rate,  less  than  the  published  tar- 
iff, is  not  evidence  that  a  published  higher  rate  is  unreasonable ;  "  and  a 
voluntary  reduction  of  rates  is  not  evidence  that  the  former  rate  was 
unreasonable ; M  and  the  continuance  of  a  given  rate  is  not  conclusive 
evidence  of  its  reasonableness ; "  and  evidence  of  rebates  allowed  in 
the  past,  when  offered  by  the  shipper  who  received  them,  is  not  com- 
petent to  show  that  the  published  rate  is  unreasonable." 

Sec.  132.  Best  and  secondary  evidence. — Secondary  evidence  "  is  ad- 
missible when  the  absence  of  best  evidence  is  satisfactorily  accounted 
for;  the  Commission  is  lenient  in  the  application  of  this  rule,  permit- 
ting the  introduction  of  carbon  copies,  press  copies,  and  copies  made 
from  duplicates. 

A  frequent  instance  of  secondary  evidence  before  the  Commission 
is  where  the  originals  consist  of  numerous  documents  which  can  not 
be  conveniently  examined  by  the  Commission  and  the  fact  to  be  proved 
is  the  general  result  of  the  whole  collection.  The  Commission  per- 
mits the  fact  to  be  shown  by  a  witness  from  an  examination  of  these 
documents. 

Sec.  133.  Order  of  evidence. — The  order  in  which  testimony  is  in- 
troduced is  substantially  the  same  as  in  the  Federal  courts,  the  Com- 
mission being  more  lenient,  however,  in  the  exercise  of  discretion  in 
admitting  evidence  after  the  complainant  has  closed  his  case  in  chief. 
Where  the  complainant  introduces  additional  evidence  after  the  case 
in  chief  has  been  closed  the  defendant  is  given  the  right  to  rebut  such 
testimony." 

The  advantages  of  following  the  customary  rules  respecting  the 
order  of  proof  are  manifest.  The  complainant  ought  to  introduce 
all  his  evidence  to  make  out  his  side  of  the  case,  except  what  is  purely 
an  answer  to  the  defense ;  the  defendant  should  submit  all  his  evidence 
and  then  opportunity  be  given  to  the  complainant  to  present  proper 
evidence  in  rebuttal.  The  complainant  may,  however,  introduce  as 
part  of  his  case  in  chief,  evidence  to  rebut  matters  which  the  defend- 
ant has  set  up  in  its  answer.  Should  the  rebutting  evidence  of  the 
complainant  bring  out  new  and  distinct  facts  the  defendant  should 

"Bovaird  Supply  Co.  v.  A.  T.  &  S.  F.  B.  Co.  (13  I.  C.  C.,  56). 

"Ottumwa  B.  Co.  v.  C.  M.  &  St.  P.  R.  Co.  (14  I.  C.  C.,  121). 

"Holmes  &  Co.  v.  S.  R.  Co.  (8  I.  C.  C.,  561). 

"Frye  &  Bruhn  v.  N.  P.  R.  Co.  (13  I.  C.  C.,  501). 

"  For  the  meaning  of  and  what  is  included  in  the  term  ' '  secondary  evidence, ' ' 
see  Greenleaf  (sec.  84  et  seq.) ;  for  cases  in  which  secondary  evidence  may  be 
given  see  Stephen  (art.  71) ;  Greenleaf  (sec.  588  et  seq.) ;  Wharton  (sec.  150 
et  seq.). 

"For  the  rules  respecting  order  of  proof  see,  Abbott's  Trial  Brief  (Chapter 
VI). 


EVIDENCE  BEFORE  COMMISSION  151 

have  an  opportunity  to  introduce  testimony  to  contradict  such  new 
facts. 

Good  faith  requires  that  both  complainant  and  defendant  shall 
present  all  material  evidence  pertinent  to  the  subject  of  the  inquiry; 
as  an  aid  thereto,  the  general  equity  question  is  not  infrequently  pro- 
pounded to  witnesses. 

Sec.  134.  Burden  of  proof. — The  burden  of  proof  before  the  Com- 
mission is  on  the  party  asserting  or  denying  a  particular  fact  unless 
the  fact  be  peculiarly  within  the  knowledge  of  one  of  the  parties,  in 
which  event  that  party  has  cast  upon  him  the  burden  of  showing  the 
specific  fact.  Owing  to  the  slight  value  of  presumptions  before 
the  Commission  the  maxim  "He  who  affirms  must  prove"  governs  to 
a  greater  degree  than  in  the  courts. 

The  Rules  of  Practice  (No.  X.)  provide: 

*  *  *  The  complainant  must  in  all  cases  establish  the  facts  alleged  to  con- 
stitute a  violation  of  the  law,  unless  the  defendant  admits  the  same  or  fails  to 
answer  the  petition.  The  defendant  must  also  prove  facts  alleged  in  the  answer, 
unless  admitted  by  the  petitioner,  and  fully  disclose  its  defense  at  the  hearing. 

Evidence  in  certain  cases  is  required : 

INSTANCE.— In  Holbrook  v.  St.  P.  M.  &  M.  E.  Co.  (  1  I.  C.  C.,  102)  where  a 
complaint  was  made  of  excessive  rates,  the  burden  of  proof  was  laid  upon*  the  com- 
plainant and  no  proofs  being  put  in  by  either  party  the  complaint  was  dismissed. 

In  Leonard  v.  U.  P.  E.  Co.  (1  I.  C.  C.,  185)  it  was  held  that  no  relief  could 
be  granted  on  issues  held  by  the  pleadings  in  the  absence  of  proof  offered. 

And  in  Spartanburg  B.  of  T.  v.  E.  &  D.  E.  Co.  (2  I.  C.  C.,  304)  it  was  held 
that  the  Commission  was  unwilling  to  determine  the  relevant  reasonableness  of 
rates  of  many  States  and  in  a  large  extent  of  territory  upon  the  mere  face  of 
tariffs  and  without  further  proof. 

In  B.  of  T.  (sub  nom  Harwell)  v.  C.  &  W.  E.  Co.  (1  I.  C.  C.,  236)  it  was 
held  that  the  same  measure  of  proof  is  required  to  show  discrimination  under 
section  2  and  prejudice  and  advantage  under  section  3  when  water  competition 
is  alleged  as  a  justification. 

The  evidence  may  be  insufficient  to  sustain  the  allegations: 

INSTANCE. — Where  the  evidence  is  insufficient  to  determine  the  question  the 
Commission  will  make  no  order,  for  example  see  Holdzkom  v.  M.  C.  E.  Co.  (9 
I.  C.  C.,  42),  McGrew  v.  M.  P.  E.  Co.  (8  I.  C.  C.,  630),  re  Alleged  Unlawful 
Charges  etc.  (8  I.  C.  C.,  585),  Savannah  F.  and  T.  Bureau  v.  L.  &  N.  E.  Co. 
(8  I.  C.  C.,  377),  Howell  v.  N.  Y.  L.  E.  &  W.  E.  Co.  (2  I.  C.  C.,  272). 

In  reparation  cases  the  evidence  has  been  frequently  insufficient  whereon  to 
base  damages,  for  example  see  Eichmond  Eltr.  Co.  v.  P.  M.  Co.  (10  I.  C.  C., 
629),  Castle  v.  B.  &  O.  E.  Co.  (8  I.  C.  C.,  333),  Perry  v.  F.  C.  &  P.  E.  Co.  (5 
L  C.  C.,  97). 

Sec.  135.  Presumptions. — The  usual  evidence  rules  regarding  pre- 
sumptions apply  before  the  Commission  but  the  weight  of  a  presump- 
tion is  not  as  strong  as  in  courts  of  law.  The  reason  for  this  is, 
doubtless,  that  transportation,  including  rates  and  practices  pertain- 


152  EVIDENCE  BEFORE  COMMISSION 

ing  thereto,  is  largely  dependent  upon  commercial  conditions"  exist- 
ing locally  or  applicable  to  the  entire  country;  there  is  a  causal  rela- 
tion between  commercial  conditions  and  transportation.  Therefore, 
a  change  in  conditions,  either  sudden  or  gradual,  may  warrant  a 
change  in  railway  practices  and  thereby  set  at  naught  a  rebuttable 
presumption. 

There  is  no  line  of  demarkation  in  practice  before  the  Commission 
between  conclusive  and  rebuttable  presumptions;  and  it  is  doubted 
whether  there  be  any  conclusive  presumptions,  except  the  one  that  a 
common  carrier  engaged  in  transportation  of  the  kind  and  by  the 
means  mentioned  in  the  first  section  of  the  act  is  subject  to  its  pro- 
visions. 

The  usual  presumptions  apply  as  to  the  legality  and  regularity  of 
official  acts,  of  the  continuance  of  a  pre-existing  state  of  things,  as  to 
foreign  laws  and  laws  of  the  several  States  of  the  United  States,  from 
spoliation  of  testimony,  and  as  to  mailing  and  delivery  of  mail  matter. 

The  filing  of  a  schedule  does  not  create  a  presumption  of  the  legal- 
ity of  the  rates  therein : 

INSTANCE. — In  San  Bernardino  B.  of  T.  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C., 
104)  it  was  held  that  the  filing  of  schedules  of  rates  with  the  Commission  as 
required  by  the  statute  raises  no  presumption  as  to  their  legality  and  further 
that  no  omission  of  failure  to  challenge  or  disprove  a  schedule  of  rates  so  filed 
can  have  the  effect  of  making  rates  lawful  which  are  unreasonable. 

In  Suffern,  Hunt  &  Co.  v.  I.  D.  &  W.  E.  Co.  (  7  I.  C.  C.,  255)  it  was  held  that 
the  fact  that  circulars  containing  rules  concerning  carload  weights  had  been 
filed  with  the  Commission,  and  no  opinion  had  been  expressed  thereon  as  to  their 
legality,  raises  no  presumption  of  approval  by  the  Commission  of  the  rules  or 
regulations  in  the  circulars  or  of  the  manner  in  which  they  were  established. 

An  advance  in  rates  may  be  considered  unjust  unless  explained : 

INSTANCE.— In  Pacific  Coast  Mfg.  Assn.  v.  N.  P.  E.  Co.  (14  I.  C.  C.,  28)  it 
was  held  that  where  an  advance  was  made  in  rates  which  had  long  been  main- 
tained and  it  was  shown  that  the  traffic  affected  was  large  and  constantly  in- 
creasing, it  was  held  that  the  advance  would  be  considered  unjust  unless  satis- 
factorily explained. 

""Commercial  conditions,"  while  used  frequently  in  justifying  rates  and 
practices  of  carriers  has  no  well  defined  meaning.  As  ordinarily  used  it  refers 
to  the  (a)  competition  of  merchants,  (6)  competition  of  places,  (c)  cost  of 
production  or  manufacture,  and  (d)  charge  for  transportation.  It  may,  how- 
ever, import  other  elements. 

In  re  Proposed  Advances  in  Eates  (9  I.  C.  C.,  382)  it  was  said:  "Carriers 
gave  as  one  of  their  reasons  for  the  present  advances  in  these  rates,  difference  in 
commercial  conditions.  Just  what  commercial  conditions  were  referred  to,  or 
just  what  difference  was  supposed  to  be,  was  not  definitely  stated.  *  *  *  And 
the  reason  assigned  by  the  carriers  for  these  advances  in  grain  rates  was  differ- 
ence in  traffic  conditions.  It  was  said  that  competition  was  less  active,  and  that 
rates  could  therefore  be  maintained. 

"We  think  herein  is  found  a  substantial  reason  why  these  rates  could  be  ad- 
vanced and  maintained;  whether  it  be  also  a  reason  why  they  should  be  is  another 
matter. ' ' 


EVIDENCE  BEFORE  COMMISSION  153 

Changes  in  rates  require  explanation  : 

INSTANCE.—  In  Oeheltree  Grain  Co.  v.  St.  L.  &  S.  F.  E.  Co.  (13  I.  C.  C.,  46) 
it  was  held  that  where  a  carrier  had  in  force  a  certain  rate  and  for  a  period 
of  two  months  put  in  force  a  higher  rate  and  then  reduced  the  charge  to  the 
former  rate,  the  action  of  the  carrier  was  in  the  nature  of  an  admission  (from 
which  a  presumption  arose)  that  the  original  rate  is  a  fair  one  unless  explained. 

There  is  no  presumption  as  to  reasonableness  of  former  rates  : 

INSTANCE.  —  In  Loud  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  529)  it  was  held  that  the  re- 

duction of  rates  raises  no  presumption  that  the  former  rates  were  unreasonable 

as  the  reduction  could  be  accounted  for  by  other  facts  such  as  a  decrease  in  the 

cost  of  transportation  or  an  increase  in  the  volume  of  traffic  in  which  such  rates 


Long-continued  practice  does  not  raise  a  presumption  of  its  legality  : 
INSTANCE.—  In  Stone  v.  D.  G.  H.  &  M.  E.  Co.  (3  I.  C.  C.,  613)  it  was  held  that 

there  was  no  presumption  as  to  lawfulness  of  a  free  cartage  furnished  at  one 

place  for  many  years  before  the  passage  of  the  act. 

Sec.  136.  Estoppel.  —  The  principle  of  estoppel19  does  not  apply  to 
parties  to  proceedings  before  the  Commission.  What  has  been  assert- 
ed by  a  complainant  in  a  preceding  ease  similar  to  a  present  one  does 
not  place  him  in  such  a  position  that  the  earlier  assertions  bind  him 
in  the  later  complaint;  so,  also,  the  defendant  is  not  precluded  from 
setting  up  facts  attempting  to  justify  its  action,  which  facts  differ 
in  two  somewhat  similar  cases. 

The  reason  the  customary  rules  relating  to  estoppel  do  not  apply 
before  the  Commission  is,  doubtless,  the  same  as  alleged  in  some  of 
the  earlier  reports  to  the  effect  that  estoppels  are  odious  and  not  to  be 
favored  in  law  because  they  tend  to  exclude  the  truth.80 

One  who  has  participated  in  a  proceeding  in  one  capacity  is  not 
estopped  to  proceed  subsequently  upon  substantially  the  same  alle- 
gations against  the  same  defendants  in  another  capacity  : 

INSTANCE.—  In  Kemble  v.  L.  S.  &  M.  S.  E.  Co.  (5  I.  C.  C.,  166),  consolidated 
with  Toledo  P.  Ex.  v.  L.  S.  &  M.  S.  E.  Co.,  the  question  arose  whether  the 
petitioner  in  the  first-mentioned  case  is  estopped  from  maintaining  his  complaint 
because  in  a  prior  case  (Boston  C.  of  C.  v.  L.  S.  &  M.  S.  E.  Co.,  1  I.  C.  C.,  436) 
against  substantially  the  same  defendants  he  was  one  of  a  committee  appointed 
by  the  chamber  of  commerce  to  prosecute  the  case  and  verify  the  petition;  in 
the  prior  cases  after  investigation  the  Commission  had  dismissed  the  petition. 
Determining  this  question  the  Commission  said: 

it  *  #  *  rpke  doctrine  Of  estoppel  of  record  does  not  seem  applicable  to 
the  case  under  consideration.  It  is  applied  to  the  record  and  judgment  of  both 
general  and  inferior  courts.  The  Commission  is  not  a  court.  It  is  a  special 
tribunal  whose  duties  though  largely  administrative  are  sometimes  semi  or  quasi 
judicial.  It  is  required  to  investigate  and  report.  The  law  creating  the  Com- 
mission does  not  mention  its  final  act  as  a  judgment.  It  renders  no  judgment, 
enters  no  decree.  Prom  these  considerations  it  is  believed  that  the  rule  of  es- 

18  Estoppel  is  where  a  man  '  '  has  done  some  act  which  the  policy  of  the  law 
will  not  permit  him  to  gainsay  or  deny."    Greenleaf  on  Evidence  (sec.  22). 
"Behr  v.  Conn.  Mut.  L.  Ins.  Co.  (2  Flipp.,  692). 


154  EVIDENCE  BEFORE  COMMISSION 

toppel  by  record,  at  all  times  technical  in  character,  can  be  invoked  by  the  de- 
fendants. It  is  true  that  the  conclusive  effects  of  judgments  have  been  accorded 
and  extended  to  the  rulings  of  certain  officials  of  the  General  Government  when 
exercising  functions  which  are  judicial  in  their  nature;  as  to  the  decision  of  the 
United  States  Commissioner  of  Patents  in  granting  and  extending  a  patent 
(Providence  Eubber  Co.  v.  Goodyear,  76  U.  S.,  9  Wall.,  788)  and  to  the  decision 
of  the  Comptroller  of  the  Currency  upon  matters  within  his  jurisdiction  in  re- 
spect to  the  national  currency  (Casey  v.  Galli,  94  U.  S.,  673).  It  will  be  found 
that  in  such  cases  the  statute  contemplated  the  act  of  the  officer  as  final,  but  the 
whole  scope  and  spirit  of  the  act  to  regulate  commerce  seems  to  stamp  the  report 
and  order  of  the  Commission  as  in  no  sense  final  in  the  sense  that  the  judgment 
of  a  court  is  final,  except  where  the  parties  impressed  by  the  wisdom  and  justice 
of  the  order  acquiesce  therein  in  cases  like  those  here  under  consideration.  It 
is  therefore  held  that  nothing  in  the  record  of  the  Boston  Chamber  of  Commerce 
cases,  as  compared  with  that  of  the  case  under  consideration,  estops  Mr.  Kemble 
from  maintaining  the  complaint  made  by  him.  Not  only  is  this  believed  to  be  a 
correct  holding  upon  general  principles,  but  it  seems  to  be  fortified  by  the  addi- 
tional consideration,  that  in  the  Boston  Chamber  of  Commerce  cases  Mr.  Kemble 
was  only  related  to  those  cases  as  a  member  of  that  body  and  one  of  its  com- 
mittee, while  he  makes  this  complaint  individually,  and  as  a  shipper  and  dealer 
in  the  character  of  goods  which  he  alleges  is  subjected  to  an  unreasonable  and 
unjustly  discriminative  rate.  The  character  of  his  relation  to  the  cases  is  en- 
tirely different.  In  the  one  it  is  representative;  in  the  other  individual  and 
personal. ' ' 

Although  there  is  no  estoppel  of  record,  the  Commission  will  adhere 
to  a  previous  decision  unless  rendered  under  a  misconception,  or  there 
be  new  facts  or  conditions : 

INSTANCE.— In  Banner  M.  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (14  I.  C.  C.,  398) 
where  the  purpose  of  the  complaint  was  to  secure  the  benefit  of  decision  of  the 
Commission  in  previous  cases,  it  was  held,  that  while  there  is  no  estoppel  of 
record  in  proceedings  before  the  Commission,  it  must  adhere  to  its  previous  con- 
clusion, unless  some  new  facts  or  changed  conditions  are  brought  to  its  atten- 
tion, or  unless  it  proceeded  upon  some  misconception  in  reaching  the  original 
decision. 

But  the  Commission  may  not  consider  itself  bound  by  decisions  in 
prior  cases,  involving  substantially  the  same  issues: 

INSTANCE.— In  Board  of  E.  Com.  v.  A.  T.  &  S.  F.  E.  Co.  (8  I.  C.  C.,  304) 
the  Commission  had  occasion  in  1899  to  consider  differential  rates  covering  the 
same  territory  that  was  the  subject  of  investigation  in  1890  (Kauffman  M.  Co. 
v.  Mo.  P.  E.  Co.,  4  I.  C.  C.,  417).  "The  territory  involved  was  identical.  The 
differential  was  the  same  then  as  now.  The  claims  of  the  parties  upon  that 
hearing  were  in  no  material  respect  different  from  those  which  have  been  made 
upon  this  trial.  It  did  not  appear  in  the  present  proceeding  that  any  new  con- 
ditions had  come  into  existence,  or  that  old  conditions  had  been  essentially  mod- 
ified. 

"Questions  coming  before  this  body  are  not  of  a  character  that  the  decision 
in  one  case  is  necessarily  controlling  in  all  similar  cases.  Its  decision  can  hardly 
be  said  to  have  the  effect  of  an  estoppel,  nor  is  there  the  same  reason  for  apply- 
ing the  maxim  stare  decisis  which  exists  in  courts  of  law.  Conditions  continually 
vary  at  different  times  and  in  different  localities.  But  when  in  a  case  like  this 
the  relation  in  freight  rates  determines  where  and  how  business  shall  be  done, 


EVIDENCE  BEFORE  COMMISSION  155 

the  decision  of  this  Commission  fixing  or  approving  a  given  relation  should  only 
be  reversed  for  imperative  reasons.  Ten  years  ago  this  differential  was  approved. 
It  may  well  be  that  since  then  money  has  been  invested  and  industries  built 
up  upon  the  strength  of  that  approval.  In  the  absence  of  some  showing  that 
new  conditions  have  intervened,  or  that  the  effects  of  the  original  holdings  have 
been  other  than  were  anticipated,  we  think  that  that  case  must  control  the  dis- 
position of  this." 

A  decision  of  the  Circuit  Court  of  Appeals  which  involved  the 
same  set  of  facts  but  not  between  the  same  parties  has  not  the  tech- 
nical effect  of  a  previous  adjudication,  but  it  was  held  that  it  ought 
to  be  and  it  was  considered  as  conclusive  upon  the  Commission  as  to 
the  questions  involved  and  decided: 

INSTANCE. — In  Cattle  Baisers'  Assn.  v.  Ft.  W.  &  D.  C.  E.  Co.  (7  I.  C.  C., 
513)  where  the  reasonableness  of  a  terminal  charge  was  involved  and  it  appeared 
that  one  of  the  carriers  was  in  the  hands  of  receivers,  and  a  shipper  had  filed  a 
petition  in  the  circuit  court  alleging  that  the  charge  was  illegal  and  asking  that 
the  receivers  be  directed  by  the  court  to  make  delivery  of  his  commodities  with- 
out the  payment  of  the  charge,  and  the  trial  court  had  sustained  the  contention 
of  the  petitioner  (as  well  as  interveners  some  of  whom  were  members  of  the 
association  complaining  to  the  Commission) ;  and  the  decision  of  the  circuit 
court  had  been  overruled  by  the  Circuit  Court  of  Appeals  which  reversed  the 
judgment,  the  Commission  held  that  the  judgment  of  the  Circuit  Court  of  Ap- 
peals was  in  effect  conclusive  upon  the  Commission  so  far  as  the  matters  em- 
braced in  it  were  identical  with  the  questions  then  before  the  Commission  for 
determination.  In  disposing  of  the  case  the  Commission  said:  "It  can  hardly 
be  said  that  this  decision  of  the  Circuit  Court  of  Appeals  is  to  be  regarded  as 
in  the  nature  of  estoppel.  Certain  members  of  the  Live  Stock  Exchange  were 
parties  to  that  suit,  but  the  corporation  itself  was  in  no  sense  a  party.  The 
Cattle  Eaisers'  Association  of  Texas,  the  original  complainant  in  this  suit,  does 
not  appear  upon  the  record  either  as  an  association  or  by  any  of  its  members. 
While,  however,  it  can  not  be  treated  as  having  the  technical  effect  of  a  previous 
adjudication  of  this  same  question,  it  is  a  judicial  decision  which  should  be  of 
controlling  force  with  us.  Whatever  order  we  might  make  in  this  case  can  only 
be  enforced  by  an  application  to  some  circuit  court.  Any  circuit  court,  even 
though  it  were  not  within  the  seventh  circuit,  would  feel  bound  to  follow  in  this 
case  the  judgment  of  the  Circuit  Court  of  Appeals.  We  ought,  therefore,  to 
be  controlled  in  the  same  manner  and  to  the  same  extent  by  the  judgment  of 
that  court.  Whatever  the  views  of  the  Commission  might  have  been  as  to  the 
questions  involved,  that  judgment  is,  in  effect,  conclusive  upon  us  so  far  as  the 
matters  embraced  in  it  were  identical  with  the  questions  presented  here. 

Sec.  137.  Hearsay. — The  strict  rules  of  evidence  respecting  hearsay 
testimony  are  not  enforced  by  the  Commission,  unless  the  source  of 
the  information  be  quite  remote.  The  complainant  is  generally  per- 
mitted to  state  the  views  of  others  upon  the  pending  proposition  if 
he  knows  them;  the  traffic  manager  of  a  commercial  organization  is 
permitted  to  state  how  the  business  of  the  several  members  is  affected 
by  the  existing  rates  and  practices;  a  defendant,  although  not  often 
required  to  do  so,  may  give  the  views  of  traffic  managers  of  other 
railways  upon  the  subject  of  inquiry,  and  it  may  introduce  in  evidence 


156  EVIDENCE  BEFORE  COMMISSION 

statistical  tables  or  other  data  made  by  clerks  from  records  in  its 
office. 

The  weight  given  to  hearsay  testimony  naturally  varies  according 
to  its  reasonableness,  the  opportunity  of  witness  to  properly  hear 
and  understand  him  from  whom  he  derived  the  information,  the 
standing  in  the  commercial  or  transportation  world  of  the  informer, 
and  the  probability  of  correct  statement  by  the  witness. 

Sec.  138.  Exceptions  to  evidence. — Exceptions  to  evidence  avail 
nothing  for  they  are  not  usually  made  the  basis  of  proceedings  subse- 
quent to  the  decision  of  the  Commission.  If  opposing  counsel  attempt 
to  introduce  testimony  upon  a  fact  which  one  conceives  not  to  be  rel- 
ative or  material,  he  may  object  to  its  introduction,  stating  his  objec- 
tions in  the  usual  way,  whereupon  the  questioner  is  given  opportunity 
to  state  the  reason  for  his  question  and  the  objector  may  reply. 
If  it  appear  that  the  fact  is  or  may  be  relevant  the  witness  is  per- 
mitted to  testify. 

If,  subsequently,  the  facts  thus  adduced  are  not  relevant  and  mate- 
rial one  may  make  a  motion  to  strike  out  the  testimony.  There  is 
rarely  a  ruling  upon  such  a  motion,  particularly  before  an  examiner, 
and  the  objectionable  matter  is  permitted  to  remain  on  the  record. 
The  object  of  such  a  motion  is  simply  to  call  attention  to  the  fact 
that  the  questioned  evidence  is  immaterial. 

Sec.  139.  Documentary  evidence. — In  the  introduction  of  documen- 
tary evidence  the  Commission  is  lenient  concerning  matters  of  certifi- 
cation and  ordinarily  draws  no  line  of  distinction  between  public  or 
official  acts,  proceedings,  records,  and  certificates  and  private  writings 
and  publications.  The  strict  rules  concerning  authentication  and  pro- 
duction of  documents  and  proof  of  execution  are  not  followed.  The 
same  is  true  as  to  the  authenticity  and  accuracy  of  maps,  plats,  dia- 
grams, photographs,  and  other  publications  of  a  similar  nature.  If 
the  counsel  or  the  witness  knows  the  writing  or  other  document  to  be 
what  it  purports  to  be,  or  a  correct  copy  thereof,  it  is  received  with 
none  of  the  formalities  required  by  the  courts. 

Sec.  140.  Parol  or  extrinsic  evidence  affecting  writings. — The  rules 
of  evidence  applicable  to  the  impeachment  of  writings  *  by  oral  testi- 
mony are  enforced  by  the  Commission  with  the  customary  strictness. 
If  a  written  or  printed  document  contain  scientific  or  technical  terms, 
one  familiar  with  them  is  permitted  to  explain  their  meaning ;  custom 
and  usage  may  be  introduced  to  explain  a  patent  ambiguity,  but  not 
to  overrule  what  is  clear. 

21  See  Stephen  on  Evidence  (art.  90),  Greenleaf  (sec.  85  et  seq.),  McKelvey 
(pp.  366-373),  Wigmore  (sec.  2400  et  seq.)  Hughes  (Ch.  IV). 

The  rule  is  thus  stated  by  Hughes  (p.  235):  "Parol  evidence  is  inadmissable 
to  vary,  add  to,  take  from,  or  contradict,  the  terms  of  a  document,  or  to  modify 
its  legal  import." 


EVIDENCE  BEFORE  COMMISSION  157 

The  author  of  a  letter  would  be  permitted  to  explain  what  he  meant 
by  it  if  the  meaning  is  uncertain,  but  not  if  it  be  clear. 

Documents  promulgated  by  a  carrier  for  the  guidance  of  the  pub- 
lic and  on  which  it  must  rely  for  information,  such  as  a  classification 
sheet,  should  be  plain  and  definite;  for  the  makers  of  it  were  not 
permitted  to  testify  to  their  understanding  of  it : 

INSTANCE. — In  Hurlburt  v.  L.  S.  &  M.  S.  E.  Co.  (2  I.  C.  C.,  122)  where  the 
question  of  the  construction  of  a  classification  was  before  the  Commission,  the 
Commission  said:  "A  classification  sheet  is  put  before  the  public  for  its  in- 
formation. It  is  supposed  to  be  expressed  in  plain  terms,  so  that  the  ordinary 
business  man  can  understand  it,  and  in  connection  with  the  rate-sheets,  can  de- 
termine for  himself  what  he  can  be  lawfully  charged  for  transportation.  The 
committee  who  prepared  this  classification  have  no  more  authority  in  construc- 
tion than  anybody  else,  and  they  must  leave  the  document,  after  they  have  given  it 
to  the  public,  to  speak  for  itself. 

' '  Terms  of  art,  however,  or  terms  peculiar  to  a  particular  occupation  or  busi- 
ness may  sometimes  require  the  evidence  of  experts  for  their  full  understanding, 
and  the  defense  offered  testimony  of  persons  connected  with  transportation  as  to 
the  understanding  of  the  terms  'hub  blocks'  and  'hub  blocks  in  the  rough'  in 
transportation  circles;  but  this  evidence  was  also  rejected  for  the  plain  reason 
that  it  was  not  the  meaning  as  understood  in  transportation  circles  that  was  in 
question,  but  the  meaning  accepted  and  acted  upon  in  the  business  in  which  the 
blocks  are  dealt  in  and  made  use  of.  The  classification  is  supposed  to  inform 
the  persons  engaged  in  that  business  in  what  classes  the  articles  they  handle  are 
placed  for  transportation  purposes,  and  it  would  fail  to  do  this  if  instead  of  em- 
ploying terms  of  designation  in  the  sense  familiar  to  themselves  it  made  use  of 
them  in  a  sense  fixed  upon  by  persons  engaged  in  an  occupation  altogether 
different,  and  which  might  to  an  expert  in  their  own  business  be  strange  and 
misleading. ' ' 

Sec.  141.  Custom  and  usage. — It  not  infrequently  happens  that  the 
customs  and  usages  respecting  the  relations  between  the  users  of 
transportation  agencies  and  the  carriers  have  an  important  bearing 
in  a  case  before  the  Commission.  It  may  be  material  to  show  a  pre- 
vailing custom  or  usage  to  justify  a  particular  charge,  or,  on  the 
other  hand,  to  excuse  it;  so,  also,  respecting  a  practice.  "When  evi- 
dence of  custom  or  usage  will  be  admitted  in  testimony,  it  must  be 
proven  by  the  usual  rules  of  evidence  applying.  The  Commission, 
however,  does  not  lo.ok  with  favor  upon  attempts  to  justify  or  ex- 
cuse charges  in  connection  with  transportation  service  by  proving 
the  custom  or  usage,  holding,  in  general,  that  no  charge  can  be  made 
or  practice  indulged  in  not  specifically  mentioned  in  the  tariffs  and 
that  all  charges  or  practices  mentioned  in  the  tariff  must  be  made  and 
enforced. 

Testimony  concerning  custom  and  usage  is  received  with  reluc- 
tance : 

INSTANCE. — In  England  v.  B.  &  O.  E.  Co.  (13  I.  C.  C.,  614)  where  the  complain- 
ant had  made  arrangements  for  the  transportation  of  a  certain  commodity  and  a 
charge  for  storage  and  insurance  was  made  by  the  carrier,  which  charge  it  was  con- 


158  EVIDENCE  BEFORE  COMMISSION 

ceived  was  not  authorized  by  the  tariffs  nor  by  the  custom  of  the  trade,  evidence 
was  adduced  to  show  the  custom,  as  it  appeared  that  there  was  no  tariff  apply- 
ing: "An  effort  was  therefore  made  to  supply  the  supposed  deficiency  by  proof 
tending  to  show  a  custom  or  understanding  in  the  grain  grade  with  respect  to 
storage  and  insurance  at  that  point  [Fairport].  This  testimony  was  received  by 
the  Commission  with  reluctance  and  only  on  the  theory  that  upon  a  consideration 
of  the  whole  record  it  might  in  some  way  throw  light  on  the  controversy." 

Sec.  142.  Notice  to  produce. — The  usual  and  customary  rules42  re- 
specting notice  to  produce  are  followed  in  practice  before  the  Com- 
mission. The  complainant  does  not,  however,  serve  a  notice  to  pro- 
duce tariffs  or  schedules,  for  the  Commission  takes  judicial  notice  of 
them  and  what  they  contain,  they  being  on  file  in  the  Commission's 
office.  In  one  case,23  a  notice  to  produce  which  specified  various  cor- 
respondence by  dates  and  then  asked  for  all  other  correspondence  re- 
lating to  the  matter  between  a  manager  of  freight  traffic  and  an 
agent  at  a  particular  point  was  met  by  a  counter  notice  asking  for 
all  correspondence  between  a  complainant  and  his  chief  clerk,  both  no- 
tices were  respected  and  all  correspondence  produced. 

The  production  of  voluminous  records  will  not  be  ordered : 

INSTANCE.— In  Mason  v.  C.  K,  I.  &  P.  E.  Co.  (12  I.  C.  C.,  61)  the  Commission 
denied  an  application  to  produce  voluminous  and  complicated  statements  and 
records,  on  the  ground  that  it  was  too  broad  and  that  "it  was  not  advised  of 
the  necessity  under  the  issues  made  in  the  case  of  entering  upon  an  examination 
of  the  records  of  the  defendant  and  the  car  service  association  for  so  long  a 
period." 

Sec.  143.  Depositions. — Depositions  for  use  before  the  Interstate 
Commerce  Commission  may  be  taken  according  to  the  provisions  of 
the  act  and  the  Rules  of  Practice.  Section  12  provides : 

The  testimony  of  any  witness  may  be  taken,  at  the  instance  of  a  party,  in  any 
proceeding  or  investigation  depending  before  the  Commission,  by  deposition,  at 
any  time  after  a  cause  or  proceeding  is  at  issue  on  petition  and  answer.  The 
Commission  may  also  order  testimony  to  be  taken  by  deposition  in  any  proceed- 
ing or  investigation  pending  before  it,  at  any  stage  of  such  proceeding  or  in- 
vestigation. Such  depositions  may  be  taken  before  any  judge  of  any  court  of 
the  United  States,  or  any  commissioner  of  a  circuit,  or  any  clerk  of  a  district 
or  circuit  court,  or  any  chancellor,  justice,  or  judge  of  a  supreme  or  superior 
court,  mayor  or  chief  magistrate  of  a  city,  judge  of  a  county  court,  or  court 
of  common  pleas  of  any  of  the  United  States,  or  any  notary  public,  not  being 
of  counsel  or  attorney  to  either  of  the  parties,  nor  interested  in  the  event  of 
the  proceeding  or  investigation.  Seasonable  notice  must  first  be  given  in  writing 
by  the  party  or  his  attorney  proposing  to  take  such  deposition  to  the  opposite 
party  or  his  attorney  of  record,  as  either  may  be  nearest,  which  notice  shall 
state  the  name  of  the  witness  and  the  time  and  place  of  the  taking  of  his  deposi- 
tion. Any  person  may  be  compelled  to  appear  and  depose,  and  to  produce  doc- 
umentary evidence,  in  the  same  manner  as  witnesses  may  be  compelled  to  appear 

BFor  rules  concerning  notice  to  produce,  see  Stephen  (art.  72),  Taylor  (sec. 
440  et  seq.),  Greenleaf  (sec.  561). 

"Charles  England  &  Co.  v.  B.  &  O.  B.  Co.  (13  I.  C.  C.,  614). 


EVIDENCE  BEFORE  COMMISSION  159 

and  testify  and  produce  documentary  evidence  before  the  Commission  as  here- 
inbefore provided. 

Every  person  deposing  as  herein  provided  shall  be  cautioned  and  sworn  (or 
affirm,  if  he  so  request)  to  testify  the  whole  truth,  and  shall  be  carefully  ex- 
amined. His  testimony  shall  be  reduced  to  writing  by  the  magistrate  taking 
the  deposition,  or  under  his  direction,  and  shall  after  it  has  been  reduced  to 
writing,  be  subscribed  by  the  depondent. 

If  a  witness  whose  testimony  may  be  desired  to  be  taken  by  deposition  be  in 
a  foreign  country,  the  deposition  may  be  taken  before  an  officer  or  person  desig- 
nated by  the  Commission,  or  agreed  upon  by  the  parties  by  stipulation  in  writing 
to  be  filed  with  the  Commission.  All  depositions  must  be  properly  filed  with  the 
Commission. 

The  rule  of  practice  applicable  to  depositions  is  Rule  XI,  see  Ap- 
pendix, post. 

Upon  the  receipt  of  depositions  the  secretary  of  the  Commission 
opens  and  files  them  as  a  part  of  the  record  in  the  case.2* 

Depositions  are  subject  to  the  rules  provided  by  sections  863  and 
864,  Revised  Statutes. 

SEC.  863.  The  testimony  of  any  witness  may  be  taken  in  any  civil  cause 
depending  in  a  district  or  circuit  court  by  deposition  de  bene  esse,  when  the  wit- 
ness lives  at  a  greater  distance  from  the  place  of  trial  than  one  hundred  miles, 
or  is  bound  on  a  voyage  to  sea,  or  is  about  to  go  out  of  the  United  States,  or  out 
of  the  district  in  which  the  case  is  to  be  tried,  and  to  a  greater  distance  than  one 
hundred  miles  from  the  place  of  trial,  before  the  time  of  trial,  or  when  he  is 
ancient  and  infirm.  The  depositions  may  be  taken  before  any  judge  of  any  court 
of  the  United  States,  or  any  commissioner  of  a  circuit  court,  or  any  clerk  of  a 
district  or  circuit  court,  or  any  chancellor,  justice,  or  judge  of  a  supreme  or 
superior  court,  mayor  or  chief  magistrate  of  a  city,  judge  of  a  county  court  or 
court  of  common  pleas  of  any  of  the  United  States,  or  any  notary  public,  not 
being  of  counsel  or  attorney  to  either  of  the  parties,  nor  interested  in  the  event 
of  the  cause.  Eeasonable  notice  must  first  be  given  in  writing  by  the  party  or 
his  attorney  proposing  to  take  such  deposition,  to  the  opposite  party  or  his  at- 
torney of  record,  as  either  may  be  nearest,  which  notice  shall  state  the  name  of 
the  witness  and  the  time  and  place  of  the  taking  of  his  deposition;  and  in  all 
cases  in  rem,  the  person  having  the  agency  or  possession  of  the  property  at  the 
time  of  seizure  shall  be  deemed  the  adverse  party,  until  a  claim  shall  have  been 
put  in;  and  whenever,  by  reason  of  the  absence  from  the  district  and  want  of 
an  attorney  of  record  or  other  reason,  the  giving  of  the  notice  herein  required 
shall  be  impracticable,  it  shall  be  lawful  to  take  such  depositions  as  there  shall 
be  urgent  necessity  for  taking,  upon  such  notice  as  any  judge  authorized  to  hold 
courts  in  such  circuit  or  district  shall  think  reasonable  and  direct.  Any  person 
may  be  compelled  to  appear  and  depose  as  provided  by  this  section,  in  the  same 
manner  as  witnesses  may  be  compelled  to  appear  and  testify  in  court. 

SEC.  864.  Every  person  deposing  as  provided  in  the  preceding  section,  shall 
be  cautioned  and  sworn  to  testify  the  whole  truth,  and  carefully  examined.  His 
testimony  shall  be  reduced  to  writing  by  the  magistrate  taking  the  deposition, 
or  by  himself  in  the  magistrate's  presence,  and  by  no  other  person,  and  shall, 
after  it  has  been  reduced  to  writing,  be  subscribed  by  the  deponent. 

Sec.  144.  Ex  parte  affidavit. — Notwithstanding  the  rules  of  prac- 
Procedure  in  Cases  at  Issue  (1  I.  C.  C.,  223). 


160  EVIDENCE  BEFORE  COMMISSION 

tice  of  the  Commission  permit  the  taking  of  depositions  by  means 
of  written  interrogatories,  ex  parte  affidavits  have  been  introduced 
in  evidence  over  the  objection  of  the  adverse  party. 

Such  testimony  avails  little,  however,  because  of  its  nature.  If  the 
subject  matter  covered  by  the  affidavit  is  material,  the  complainant 
should  arrange  to  take  the  deposition  of  the  witness  either  before,  or 
with  leave  obtained,  after,  the  hearing;  if  it  be  immaterial  or  cumu- 
lative the  adverse  party  will  generally  admit  the  fact. 

Sec.  145.  Fees  of  witnesses. — Witnesses  before  the  Commission  are 
by  section  18  of  the  act  entitled  to  the  same  fees  and  mileage  that  are 
paid  witnesses  in  the  courts  of  the  United  States. 

"Witnesses  whose  depositions  are  taken  pursuant  to  the  act  to  regu- 
late commerce  and  the  magistrate  or  other  officer  taking  the  same  are 
severally  entitled,  under  section  12  of  the  act,  to  the  same  fees  as  are 
paid  for  like  services  in  the  courts  of  the  United  States. 

The  fees  of  United  States  witnesses  are  fixed  by  section  848,  Eevised 
Statutes : 

SEC.  848.  For  each  day's  attendance  in  court,  or  before  any  officer  pursuant 
to  law,  one  dollar  and  fifty  cents,  and  five  cents  a  mile  for  going  from  Ms  place 
of  residence  to  the  place  of  trial  or  hearing,  and  five  cents  a  mile  for  returning. 
When  a  witness  is  subpoenaed  in  more  than  one  cause  between  the  same  parties, 
at  the  same  court,  only  one  travel  fee  and  one  per  diem  compensation  shall  be 
allowed  for  attendance.  Both  shall  be  taxed  in  the  case  first  disposed  of,  after 
which  the  per  diem  attendance  fee  alone  shall  be  taxed  in  the  other  cases  in  the 
order  in  which  they  are  disposed  of. 

When  a  witness  is  detained  in  prison  for  want  of  security  for  his  appearance 
he  shall  be  entitled,  in  addition  to  his  subsistence,  to  a  compensation  of  one 
dollar  a  day. 

The  customary  rules  concerning  the  tender  of  witnesses  fees  and 
mileage  applies  to  witnesses  before  the  Commission;  for  the  purpose 
of  making  the  tender  at  the  time  of  the  service  of  subpoena  one  usu- 
ally accomplishes  the  service  and  tender  through  the  office  of  the 
United  States  marshal  of  the  district  in  which  the  hearing  is  to  be 
held. 

Sec.  146.  Immunity  of  witnesses. — The  immunity  provisions  of  the 
interstate  commerce  act  and  similar  acts  are  made  necessary  by  that 
portion  of  the  fifth  amendment  to  the  Constitution,  reading:  ''Nor 
shall  [any  person]  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself."  Without  laws  giving  immunity,  the  proper  en- 
forcement of  the  statutes  regulating  commerce  would  be  very  difficult 
as  only  those  violating  the  laws  have  knowledge  thereof;  if  such  per- 
sons be  permitted  to  plead  the  constitutional  immunity  privilege  the 
laws  would  in  many  respects  be  nugatory. 

The  guaranty  of  the  Constitution  to  the  individual  is  the  measure 
of  the  constitutionality  of  the  laws  providing  for  the  immunity  of  wit- 


EVIDENCE  BEFORE  COMMISSION  161 

nesses;  if  the  statute  gives  immunity  as  broad  as  the  constitutional 
provision,  the  requirements  are  met ;  if  the  immunity  is  anything  less 
than  given  by  the  supreme  law  of  the  land,  the  statute  is  void.  The 
court  in  U.  S.  v.  Armour  &  Co.  (142  Fed.,  808)  expressed  the  rule 
thus: 

The  fifth  amendment  deals  with  one  of  the  most  cherished  rights  of  the 
American  citizen,  and  has  been  construed  by  the  courts  to  mean  that  the  witness 
shall  have  the  right  to  remain  silent  when  questioned  upon  any  subject  where 
the  answer  would  tend  to  incriminate  him.  Congress  by  the  immunity  laws  in 
question,  and  each  of  them  (immunity  laws  referring  to  investigations  by  the 
Commissioner  of  Corporations),  has  taken  away  the  privilege  contained  in  the 
amendment,  and  it  is  conceded  in  argument  that  this  can  not  be  done  without 
giving  to  the  citizen  by  way  of  immunity,  something  as  broad  and  valuable  as 
the  privilege  thus  destroyed.  We  are  not  without  authority  on  this  question. 
By  a  previous  act  Congress  undertook  to  take  away  the  constitutional  privilege 
by  giving  the  citizen  an  equivalent,  and  the  Supreme  Court  held  in  the  case  of 
Counselman  v.  Hitchcock  (142  U.  S.,  547)  that  the  substitute  so  given  was  not 
an  equivalent.  Then,  at  various  times,  the  immunity  acts  in  question  were  passed 
by  Congress  with  full  knowledge  that  in  furnishing  a  substitute  for  this  great 
right  of  the  citizen,  it  must  give  something  as  broad  as  the  privilege  taken 
away.  It  might  be  broader,  but  it  could  not  be  narrower. 

The  statutes  relating  to  the  immunity  of  witnesses  (other  than  the 
bankruptcy  act  "*  and  section  859 ,26  Revised  Statutes,  are : 

(a)  Section  860,  Revised  Statutes:  "No  pleading  of  a  party,  nor  any  dis- 
covery or  evidence  obtained  from  a  party  or  witness  by  means  of  a  judicial 
proceeding  in  this  or  any  foreign  country,  shall  be  given  in  evidence,  or  in  any 
manner  used  against  him  or  his  property  or  estate,  in  any  court  of  the  United 
States  in  any  criminal  proceeding,  or  for  the  enforcement  of  any  penalty  or  for- 
feiture: Provided,  That  this  section  shall  not  exempt  any  party  or  witness 
from  prosecution  and  punishment  for  perjury  committed  in  discovering  or  testi- 
fying as  aforesaid. ' '  * 

(&)  Interstate  commerce  act,  section  9:  In  actions  brought  for  recovery  of 
damages  the  court  may  compel  any  director,  officer,  receiver,  trustee,  or  agent 
of  the  corporation  or  company  defendant  to  attend  and  testify,  "the  claim 
that  any  such  testimony  or  evidence  may  tend  to  criminate  the  person  giving 
such  evidence  shall  not  excuse  such  witness  from  testifying,  but  such  evidence 

"Sec.  7a  of  the  bankruptcy  act  (30  Stat.  L.,  548)  provides:  "No  testimony 
given  by  him  [the  bankrupt]  shall  be  offered  in  evidence  against  him  in  any 
criminal  proceeding."  (See  Burrell  v.  Montana,  194  U.  S.,  572). 

20 ' '  No  testimony  given  by  a  witness  before  either  House,  or  before  any  com- 
mittee of  either  House  of  Congress,  shall  be  used  as  evidence  in  any  criminal 
proceeding  against  him  in  any  court,  except  in  a  prosecution  for  perjury  com- 
mitted in  giving  such  testimony.  But  an  official  paper  or  record  produced  by 
him  is  not  within  the  said  privilege." 

27  An  affidavit  is  not  ' '  a  pleading  of  a  party ' '  within  the  meaning  of  this  sec- 
tion (Tucker  v.  U.  S.,  151  U.  S.,  164).  It  is  for  the  judge  before  whom  the 
question  arises  to  decide  whether  an  answer  to  a  question  put  may  reasonably 
have  a  tendency  to  criminate  the  witness  or  to  furnish  proof  of  a  link  in  the 
chain  of  evidence  necessary  to  convict  him  of  a  crime  (Wycoff  v.  Wagner  Type- 
writer Co.,  99  Fed.,  158).  The  provision  of  this  section  is  not  co-extensive  with 
that  of  the  amendment  of  the  Constitution,  as  the  former  "does  not  supply  a 
complete  protection  from  all  the  perils  against  which  the  constitutional  prohibi- 
tion was  designed  to  guard,  and  is  not  a  full  substitute  for  that  prohibition" 
(Counselman  v.  Hitchcock,  142  U.  S.,  547). 


162  EVIDENCE  BEFORE  COMMISSION 

or  testimony  shall  not  be  used  against  such  person  on  the  trial  of  any  criminal 
proceeding. ' '  * 

(c)  Interstate  commerce  act,  section  12:     Where  the  aid  of  a  circuit  court  has 
been  invoked  to  compel  a  witness  to  appear  and  testify  before  the  Commission, 
"the  claim  that  any  such  testimony  or  evidence  may  tend  to  criminate  the  per- 
son giving  such  evidence  shall  not  excuse  such  witness  from  testifying;    but  such 
evidence  or  testimony  shall  not  be  used  against  such  person  on  the  trial  of  any 
criminal  proceeding."" 

(d)  Act  of  February  11,  1893:     "That  no  person  shall  be  excused  from  at- 
tending and  testifying   or    from    producing    books,    papers,    tariffs,    contracts, 
agreements  and  documents  before  the   Interstate   Commerce   Commission,   or  in 
obedience  to  the  subpoena  of  the  Commission,  whether  such  subpoena  be  signed 
or  issued  by  one  or  more  Commissioners,  or  in  any  cause  or  proceeding,  criminal 
or  otherwise,  based  upon  or  growing  out  of  any  alleged  violation  of  the  act  of 
Congress,   entitled   'An  act  to  regulate  commerce,'   approved   February   fourth, 
eighteen  hundred  and  eighty-seven,  or  of  any  amendment  thereof  on  the  ground 
or  for  the  reason  that  the  testimony  or  evidence,  documentary  or  otherwise,  re- 
quired of  him,  may  tend  to  criminate  him  or  subject  him  to  a  penalty  or  forfeit- 
ure.    But  no  person  shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeit- 
ure for  or  on  account  of  any  transaction,  matter  or  thing,  concerning  which  he 
may  testify,  or  produce  evidence,  documentary  or  otherwise,  before   said  Com- 
mission, or  in  obedience  to  its  subpoena,  or  the  subpoena  of  either  of  them,  or  in 
any  such  case  or  proceeding:     Provided,    That  no  person  so  testifying  shall  be 
exempt  from  prosecution  and  punishment  for  perjury  committed  in  so  testifying. 

"Any  person  who  shall  neglect  or  refuse  to  attend  and  testify,  or  to  answer 
any  lawful  inquiry,  or  to  produce  books,  papers,  tariffs,  contracts,  agreements, 
and  documents,  if  in  his  power  to  do  so,  in  obedience  to  the  subpoena  or  lawful 
requirement  of  the  Commission,  shall  be  guilty  of  an  offense  and  upon  conviction 
thereof  by  a  court  of  competent  jurisdiction  shall  be  punished  by  fine  not  less 
than  one  hundred  dollars  nor  more  than  five  thousand  dollars,  or  by  imprison- 
ment for  not  more  than  one  year  or  by  both  such  fine  and  inprisonment. ' '  * 

(e)  Elkins  law,  February  19,  1903,  section  3,  in  proceeding  before  the  courts 
to  compel  compliance  with  the  published  rates  or  prevent  discrimination  they  have 
power  to  compel  the  attendance  of  witnesses,  both  upon  the  part  of  the  carrier 

28  This  provision  being  substantially  the  same  as  section  860,  Revised  Statutes, 
the  decision  in  Counselman  v.  Hitchcock,  supra,  would  doubtless  apply. 

"  This  provision  is  unconstitutional  in  view  of  the  decision  in  Counselman  v. 
Hitchcock  (142  U.  S.,  547)  and  I.  C.  C.  v.  Brimson  (154  U.  S.,  480). 

80 The  note  to  this  Act  (2  Supp.  Eev.  Stat.  p.  80)  reads:  "This  act  super- 
sedes, in  part,  that  of  1891,  Feb.  10,  ch.  128  (1  Supp.  E.  S.,  891). 

Its  object  was  to  obviate  constitutional  objections  held  by  the  Supreme  Court 
(see  142  U.  S.,  547)  to  be  fatal  to  previous  legislation.  A  statute  compelling 
a  witness  to  give  self -incriminating  testimony,  'to  be  valid,  must  afford  absolute 
immunity  against  future  prosecution  zor  the  offence  to  which  the  question  relates' 
(142  U.  S.,  586).  Such  immunity  this  statute  affords." 

In  Brown  v.  Walker  (161  IT.  S.,  591)  the  court  reviews  numerous  immunity 
statutes,  holding  that  the  act  which  satisfies  the  constitutional  guaranty  against 
compelling  a  witness  in  a  criminal  case  to  be  a  witness  against  himself;  dissent- 
ing opinion  by  Shiras,  Gray,  White  and  Field,  justices.  This  act  had  been  held 
unconstitutional  in  U.  S.  v.  James  (  60  Fed.,  257). 

The  act  affords  absolute  immunity  against  criminal  prosecution  either  in  the 
State  or  Federal  courts  for  the  offences  to  which  the  subject  relates  (Brown  v. 
Walker,  161  U.  S.,  591). 

It  was  held,  in  Re  Pooling  Freights  (115  Fed.,  588)  that  immunity  under  this 
statute  is  confined  to  the  witness  personally  and  cannot  be  extended  to  the 
corporation  which  he  represents;  compare  provisions  of  act  of  June  30,  1906, 
"An  act  defining  the  right  of  immunity  of  witnesses,"  etc. 


EVIDENCE  BEFORE  COMMISSION  163 

and  the  shipper,  "who  shall  be  required  to  answer  on  all  subjects  relating  di- 
rectly or  indirectly  to  the  matter  in  controversy,  and  to  compel  the  production 
of  all  books  and  papers,  both  of  the  carrier  and  the  shipper,  which  relate  directly 
or  indirectly  to  such  transactions;  the  claim  that  such  testimony  or  evidence 
may  tend  to  criminate  the  person  giving  such  evidence  shall  not  excuse  such 
person  from  testifying  or  such  corporation  producing  its  books  and  papers,  but 
no  person  shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeiture  for  or  on 
account  of  any  transaction,  matter,  or  thing  concerning  which  he  may  testify  or 
produce  evidence,  documentary  or  otherwise,  in  such  proceeding. ' '  *• 

(/)  "That  for  the  enforcement  of  the  provisions  of  the  act  entitled  'An  act 
to  regulate  commerce,'  approved  February  fourth,  eighteen  hundred  and  eighty- 
seven,  and  all  acts  amendatory  thereof  or  supplemental  thereto,  and  of  the  act 
entitled  'An  act  to  protect  trade  and  commerce  against  unlawful  restraints  and 
monopolies,'  approved  July  second,  eighteen  hundred  and  ninety,  and  all  acts 
amendatory  thereof  or  supplemental  thereto,  and  sections  seventy-three,  seventy- 
four,  seventy-five,  and  seventy-six  of  the  act  entitled  'An  act  to  reduce  taxation, 
to  provide  revenue  for  the  Government,  and  other  purposes,'  approved  August 
twenty-seventh,  eighteen  hundred  and  ninety-four  *  *  *  Provided,  That  no 
person  shall  be  prosecuted  or  be  subjected  to  any  penalty  or  forfeiture  for  or 
on  account  of  any  transaction,  matter,  or  thing  concerning  which  he  may  testify 
or  produce  evidence,  documentary  or  otherwise,  in  any  proceeding,  suit,  or  pros- 
ecution under  said  acts:  Provided  further,  That  no  person  so  testifying  shall 
be  exempt  from  prosecution  or  punishment  for  perjury  committed  in  so  testify- 
ing."82 

(g)  Act  defining  the  right  of  immunity  of  witnesses,  under  various  acts,  ap- 
proved June  30,  1906:  "That  under  the  immunity  provisions  in  the  act  entitled 
'An  act  in  relation  to  testimony  before  the  Interstate  Commerce  Commission,' 
and  so  forth,  approved  February  eleventh,  eighteen  hundred  and  ninety-three, 
*  *  *  and  in  the  act  entitled  'An  act  to  further  regulate  commerce  with  for- 
eign nations  and  among  the  States,'  approved  February  nineteenth,  nineteen  hun- 
dred and  three,  *  *  *  immunity  shall  extend  only  to  a  natural  person  who, 
in  obedience  to  a  subpoena,  gives  testimony  under  oath  or  produces  evidence, 
documentary  or  otherwise,  under  oath."83 

The  passage  of  this  act  was  made  necessary  by  the  decision  of  the 
Circuit  Court  for  the  Northern  District  of  Illinois  in  U.  S.  v.  Armour 
&  Co.  (142  Fed.,  808),  a  criminal  prosecution  under  the  Sherman 
antitrust  law  (act  of  July  2,  1890) ;  by  that  decision,  while  denying 
immunity  to  a  corporation  defendant  on  the  authority  of  Hale  v. 

81  The  immunity  act  of  February  11,  1893,  applies  to  cases  brought  under  the 
direction  of  the  Attorney-General  in  the  name  of  the  Interstate  Commerce  Com- 
mission, not  only  to  actions  seeking  to  compel  obedience  to  the  published  tariffs 
and  to  prevent  unjust  discrimination,  but  also  to  proceedings  to  compel  the  pro- 
duction of  books  and  papers.  From  the  judgment  of  the  circuit  court  in  such 
cases  an  appeal  lies  direct  to  the  Supreme  Court  (I.  C.  C.  v.  Bond,  194  U.  S.,  25). 

32  From  legislative,  executive  and  judicial  appropriation  act  of  February  25, 
1903,  ch.  755.  This  provision  may  not  afford  immunity  from  prosecution  in  the 
State  courts  but  it  nevertheless  satisfies  the  constitutional  privilege  against  self- 
incrimination ;  the  privilege  against  self-incrimination  afforded  by  the  Con- 
stitution is  purely  personal  and  can  not  be  claimed  by  one  for  another  or  by  an 
agent  of  a  corporation  for  the  corporation.  (Hale  v.  Henkel,  201  TJ.  S.,  43). 

"  The  more  recent  cases  decided  by  the  Supreme  Court  involving  immunity 
statutes  are  Hale  v.  Henkel  (201  U.  S.,  43),  Nelson  v.  U.  S.  (201  U.  S.,  92), 
Alexander  v.  U.  S.  (201  U.  S.,  117). 


164  EVIDENCE  BEFORE  COMMISSION 

Henkel  (201  U.  S.,  43),  the  court  gave  immunity  to  those  natural 
persons  who  did  and  did  not  supply  information,  to  natural  persons 
who  were  not  served  with  subpoena  to  appear  and  give  evidence  before 
the  Commissioner  of  Corporations,  to  whose  investigations  the  act  of 
February  11,  1893  (supra)  applies. 

Sec.  147.  Adverse  witnesses. — Practice  before  the  Commission  per- 
mits one  of  the  parties  to  call  a  witness  from  the  other  side  to  give 
testimony  concerning  the  issues.  The  complainant  often  places  on  the 
stand  the  traffic  manager  or  other  official  of  the  defendant  carrier, 
and  the  defendant  may  secure  evidence  from  the  complainant,  if  he 
has  not  testified  in  the  case  in  chief.  The  practice  of  making  a  traf- 
fic manager  of  the  defendant  carrier  a  witness  for  the  complainant 
is  so  common  that  it  may  be  said  to  be  the  rule,  rather  than  the  ex- 
ception. Such  a  witness,  while  called  on  behalf  of  the  complainant, 
is  not  a  hostile  witness  in  the  usual  sense  of  that  term ;  he  is  perhaps 
an  adverse  witness  and  therefore  not  subject  to  the  rules  which  coun- 
sel is  often  justified  in  following.  A  traffic  official  has  at  his  com- 
mand a  fund  of  information,  often  historical  in  its  nature,  which  is 
of  the  utmost  value  to  those  charged  with  administering  the  law;  he 
is  conversant  with  the  previous  rates,  or  practices,  when  and  why  put 
in  force,  when  and  why  changed,  how  the  rate  "makes"  and  why,  and 
other  information  not  available  or  in  the  possession  of  the  users  of  the 
transportation  facilities. 

In  appropriate  cases  officials  from  the  operating  or  other  depart- 
ments of  the  carrier  may  be  placed  on  the  stand. 

Such  witness  may  be  biased  in  judgment,  or  the  interest  he  repre- 
sents may  be  such  as  to  affect  his  opinion  or  argument,  but  upon  the 
questions  of  fact,  whether  present  or  past,  he  speaks  correctly.** 

The  defendant  is  at  liberty  to  place  the  complainant  or  his  em- 
ployees upon  the  stand  if  it  be  found  that  he  or  they  have  informa- 
tion of  advantage  to  the  defendant's  case;  such  practice  is  not  as  com- 
mon as  that  just  mentioned,  but  is  frequently  indulged  in. 

It  results  from  what  has  been  said  that  neither  of  the  parties  to  the 
controversy  is  bound  by  the  evidence  of  the  witnesses  as  are  the  con- 
testants in  a  court  of  law.  One  is  permitted  to  controvert  a  fact 
testified  to  by  one's  own  witness  whether  the  witness  come  from  the 
employ  of  the  opponent  or  is  strictly  one's  own  witness  although  no 
surprise  be  urged,  for  after  all  the  desideratum  is  the  fact  or  facts 
of  the  case. 

Sec.  148.  Examination  of  witnesses. — The  method  of  examination  of 
witnesses  is  subject  to  the  usual  rules  of  practice  pertaining  thereto. 
The  Commission  is  lenient,  however,  concerning  leading  questions  and 
the  manner  in  which  questions  are  framed.  The  practitioner  will 

u  Such  at  least  has  been  the  experience  of  the  author. 


EVIDENCE  BEFORE  COMMISSION  165 

not,  however,  because  of  the  leniency,  propound  misleading  or  annoy- 
ing questions  or  prolong  the  examination  of  witnesses  by  repetition. 

The  usual  rule  concerning  examination  and  cross-examination  by 
one  counsel  for  each  interest  is  adhered  to,  but  additional  counsel 
are  frequently  permitted  to  ask  questions  in  order  to  explain  on 
the  record  what  appears  to  be  uncertain  or  doubtful. 

When  one  or  more  of  the  Commissioners,  or  an  examiner,  is  con- 
ducting a  hearing  a  witness  is  subject  to  examination  from  the 
bench,  and  even  at  great  length ;  as, ' '  in  the  orthodox  English  practice 
the  presiding  official  has  never  ceased  to  perform  an  active  and  virile 
part  as  a  director  of  the  proceedings  and  an  administrator  of  jus- 
tice,"38 so  the  Commission  or  its  examiners  have  always  considered  it 
their  duty  and  right  to  put  to  the  witness  such  questions  as  they  may 
deem  advisable  to  secure  the  facts  on  which  the  decision  of  the  Com- 
mission is  to  rest.38 

The  interrogation  of  witnesses  by  the  Commission  arises  from  its 
power  upon  complaint  "to  make  an  investigation."  The  body  has 
a  duty  of  its  own  independent  of  the  litigants  and  one  part  of  that 
duty  is  to  ascertain  all  the  facts. 

Sec.  149.  Necessity  for  proof.87 — While  the  issues  of  a  case  before  the 
Commission  may  be  made  by  various  methods  by  the  pleadings,  if 
any  of  the  issues  be  of  fact  there  is  necessity  for  proof;  if  the  facts 
be  admitted,  or  are  agreed  upon,  and  the  issue  be  purely  one  of  law, 
no  proof  is  required;  such  cases,  however,  are  rare,  for  the  reason 
that  the  statute  prohibits  unjust  and  unreasonable  rates  and  undue 
discriminations.  Whatever  may  technically  be  the  function88  of  de- 
termining what  is  unreasonable  or  undue,  whether  within  the  pro- 
vince of  the  jury  as  a  question  of  fact  or  within  the  province  of  the 
presiding  judicial  officer  as  a  question  of  law,  or  a  mixed  question  of 
law  and  fact,  it  is  nevertheless  necessary  to  show  to  the  Commission, 
in  proving  that  the  rate  is  unreasonable  or  the  discrimination  undue, 
the  effect  of  the  rate  or  discrimination  upon  the  complainant's  busi- 
ness ;  discrimination  may  exist  but  it  may  not  be  such  as  to  violate  the 
act. 

The  complainant  may  conceive  that  the  discrimination  is  so  plain 
that  it  will  be  held  undue  as  a  matter  of  law.  It  will  not  ordinarily 

"Wigmore,  Evidence  (sec.  784). 

86  The  right  of  examination  of  witnesses  by  the  judge  was  not  doubted  at  com- 
mon law;  if,  through  ignorance,  negligence  or  collusion  of  counsel  the  truth 
be  not  brought  out  it  is  clearly  the  duty  of  the  presiding  judge  to  secure  such 
information,  by  his  own  examination  or  otherwise,  as  will  conduce  to  the  admin- 
istration of  justice  (Epps  v.  State,  19  Ga.,  18;  Huffman  v.  Cauble,  86  Ind.. 
591;  Bartley  v.  State,  55  Nebr.,  294). 

37  See  sec.  134  ante,  Burden  of  proof. 

88  In  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  C.,  197)  it  was  held  that  what  consti- 
tutes an  undue  preference  or  advantage  under  section  '3  is  a  question  or  fact  and 
not  of  law. 


166  EVIDENCE  BEFORE  COMMISSION 

be  held  such  if  the  carrier  in  its  answer  sets  up  facts  which  it  alleges 
to  justify  or  excuse  the  rate  or  practice.  A  valid  justification  or  ex- 
cuse for  an  admitted  discrimination  will  prevent  a  decision  that  the 
discrimination  is  undue. 

It  results  from  what  has  been  said  that  evidence  is  necessary  in 
all  cases  unless  all  the  facts  bearing  upon  the  question  have  been  ad- 
mitted or  agreed  upon. 

The  complete  defense  should  be  presented  to  the  Commission : 
INSTANCE.— In  C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  184)  the  Supreme 
Court  said:  "We  think  this  a  proper  occasion  to  express  disapproval  of  such  a 
method  of  procedure  on  the  part  of  the  railroad  companies  as  should  lead  them 
to  withhold  the  larger  part  of  their  evidence  from  the  Commission,  and  first  ad- 
duce it  in  the  circuit  court.  The  Commission  is  an  administrative  board,  and 
the  courts  are  only  to  be  resorted  to  when  the  Commission  prefers  to  enforce  the 
provisions  of  the  statute  by  a  direct  proceeding  in  the  court,  or  when  the  orders 
of  the  Commission  have  been  disregarded.  The  theory  of  the  act  evidently  is, 
as  shown  by  the  provision  that  findings  of  the  Commission  shall  be  regarded  as 
prima  facie  evidence,  that  the  facts  of  the  case  are  to  be  disclosed  before  the 
Commission.  We  do  not  mean,  of  course,  that  either  party,  in  a  trial  in  the  court, 
is  to  be  restricted  to  the  evidence  that  was  before  the  Commission,  but  that  the 
purposes  of  the  act  call  for  a  full  inquiry  by  the  Commission  into  all  the  circum- 
stances and  conditions  pertinent  to  the  questions  involved." 

Not  only  is  there  necessity  for  proof  but  there  must  be  sufficient 
evidence  to  sustain  the  allegations  and  to  warrant  a  finding  on  the 
facts  and  resulting  violation  of  law : 

INSTANCE. — In  Globe-Wernicke  Co.  v.  B.  &  O.  S.  W.  E.  Co.  (11  I.  C.  C.,  156) 
the  evidence  was  insufficient,  although  partially  convincing,  to  show  an  unlawful 
discrimination  in  classification. 

In  Dewey  Bros.  v.  B.  &  O.  E.  Co.  (11  I.  C.  C.,  474)  a  complainant  sought  repara- 
tion but  the  proof  was  lacking  in  that  it  did  not  indicate  definitely  what  was  the 
rate  charged;  and  in  Gallogly  &  Firestine  v.  C.  H.  &  D.  E.  Co.  (11  I.  C.  C.,  1) 
the  evidence  relating  to  damages  sustained  by  the  complainants  was  held  unsatis- 
factory and  inconclusive. 

In  Eaymond  v.  C.  M.  &  St.  P.  E.  Co.  (1  I.  C.  C.,  230)  it  was  held  that  rates 
would  not  be  declared  unreasonable  and  unlawful  under  the  first  section  of  the 
act  without  other  testimony  than  that  afforded  by  comparison. 

In  Howell  v.  N.  Y.  L.  E.  &  W.  E.  Co.  (2  I.  C.  C.,  272)  the  Commission  said: 
"It  is  obvious  that  the  data  furnished  upon  the  question  of  whether  the  rate 
complained  of  is  just  and  reasonable  are  exceedingly  meager.  The  question  of 
the  reasonableness  of  rates  is  always  a  perplexing  one.  A  great  variety  of  con- 
siderations are  necessarily  involved  in  each  instance.  Theory  and  conjecture 
merely  are  not  enough.  A  comparison  of  one  isolated  rate  with  another  is  not 
sufficient.  The  whole  field  must  be  considered  in  order  to  approximate  justice, 
and  at  best  the  result  can  not  be  regarded  as  other  than  an  approximation. 

' '  In  the  present  case  the  proofs  show  the  volume  of  the  business  in  question  ami 
the  way  in  which  it  is  transacted;  the  distances  traversed  and  the  various  ex- 
traordinary expenses  involved;  the  rates  charged  upon  milk  and  cream,  together 
with  the  rates  charged  upon  four  other  articles  of  traffic.  The  passenger  fares 
in  force  upon  the  defendant  roads  were  also  put  in  evidence,  but  no  important 
relation  between  them  and  the  milk  rates  is  perceived. 


EVIDENCE  BEFORE  COMMISSION  167 

"In  order  to  arrive  at  a  just  understanding  and  determination  of  the  question 
presented,  many  other  lines  of  evidence  and  of  comparison  would  be  admissible,  in 
respect  to  which  the  case  is  wholly  barren;  some  of  them  are  of  great  import- 
ance. ' ' 

In  Eice  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  228)  where  "blanket  rates"  were 
complained  of  but  the  evidence  was  confined  to  points  other  than  intermediate 
points,  neither  the  complainant  nor  any  other  shipper  or  consignee  having  made 
any  complaint  or  offered  any  evidence  in  the  proceeding  that  the  rates  at  the 
intermediate  points  were  unjust  or  unreasonable,  the  Commission  under  the  cir- 
cumstances declined  to  determine  whether  the  rates  at  the  intermediate  points 
were  in  any  respects  unjust  and  unreasonable,  as  the  determination  would  involve 
"questions  upon  which  the  carriers  are  entitled  to  a  hearing  and  to  an  oppor- 
tunity to  put  in  evidence,  and  whether  investigated  by  the  Commission  upon  the 
complaint  of  a  shipper  or  consignee,  or  of  its  own  motion,  will  also  involve  the 
taking  of  a  great  deal  of  evidence  and  enter  upon  an  extensive  field  of  various 
considerations. ' ' 

In  Grain  Shippers'  Assn.  v.  I.  C.  E.  Co.  (8  I.  C.  C.,  158)  it  was  held  that  an 
order  granting  reparation  for  a  reasonable  rate  must  be  based  upon  evidence  and 
the  finding  that  the  rate  was  unreasonable  at  the  time  it  was  paid;  and  where 
such  evidence  is  wanting  no  reparation  can  be  awarded. 

In  Eiehmond  Eltr.  Co.  v.  P.  M.  E.  Co.  (10  I.  C.  C.,  629)  the  Commission  said: 
"We  must  first  inquire  in  this  case  whether  complainant  has  submitted  proofs 
which  amount  to  a  showing  of  discrimination  by  defendant  in  the  provision  of 
cars  for  its  shipments  and  those  of  other  shippers  by  defendant's  line. 

' '  The  defendant 's  rule  of  car  apportionment  is  that  regardless  of  the  number 
of  carloads  shippers  may  have  ready  for  shipment,  the  first  car  goes  to  the  shipper 
who  placed  the  first  order,  the  second  to  the  second  order,  and  so  on  until  each 
day's  supply  is  exhausted.  The  mere  showing  of  such  a  rule  and  claim  that  it 
works  discrimination  is  insufficient.  The  actual  effect  of  the  rule  during  the 
time  covered  by  the  complaint  is  necessary  to  a  determination  of  the  question  of 
unfairness  in  the  distribution  of  cars." 

The  right  to  give  evidence  and  the  opportunity  for  calling  and 
cross-examining  witnesses,  even  in  a  general  investigation,  are  neces- 
sary for  a  compliance  with  the  statute.89 

Sec.  150.  The  evidence  required  in  particular  cases. — The  evidence 
required  in  particular  cases  to  sustain  alleged  violations  of  the  act 
naturally  varies  according  to  the  specific  portion  of  the  act  on  which 
a  party  relies.  In  some  instances  the  character  of  evidence  is  indi- 
cated by  the  wording  of  the  statute,  in  others  by  reason  of  the  fact 
that  the  statute  does  not  define  the  terms  it  uses,  it  has  been  left  to 
the  Commission  and  the  courts  to  determine  the  evidence  necessary. 
Where  the  Commission  or  the  courts  have  indicated  the  points  on 
which  evidence  tending  to  show  facts  must  be  given,  it  not  infre- 
quently happens  that  evidence  which  serves  to  prove  one  fact  may 
also  tend  to  prove  another;  it  is  therefore  difficult  to  prescribe  rules 
applicable  to  specific  cases.  Further,  although  interstate  commerce 
cases  have  been  before  the  Commission  and  the  courts  for  over  two 
decades  the  evidence  necessary  to  prove  specific  facts  has  not  reached 

89  In  Ee  Alleged  Excessive  Freight  Eates,  etc.  (4  I.  C.  C.,  116). 


168  EVIDENCE  BEFORE  COMMISSION 

such  a  stage  as  to  be  crystalized  into  definite  rules.  For  this  reason, 
it  cannot  now  be  said  that  the  practice  has  reached  such  a  degree  that 
the  nature  of  the  evidence  in  a  particular  case  is  certain.  As  each 
proceeding  before  the  Commission  is  more  independent  of  those  sim- 
ilar to  it  than  are  court  cases,  the  evidence  necessary  for  their  de- 
termination must  vary  more  than  in  law  and  equity  causes. 

EVIDENCE  NECESSAEY  UNDER  PROVISIONS  OF  STATUTE 

We  shall  consider  first  those  cases  for  which  the  statute  explicitly 
or  by  implication  indicates  the  evidence  required : 

(a)  In  cases  alleging  a  failure  to  make  switch  connections. — It  fol- 
lows, from  the  language  of  section  1,  that  the  defendant  must  be  shown 
to  be  a  common  carrier  subject  to  the  act ;  that  the  application  in  writ- 
ing for  a  switch  connection  has  been  made  by  a  lateral,  branch  line 
of  railroad  or  a  shipper;  that  the  applicant  tendered,  and  probably 
continues  to  tender  interstate  traffic  for  transportation ;  that  the  phy- 
sical construction  is  reasonably  practicable  and  can  be  put  in  with 
safety;  that  there  will  be  sufficient  business  to  justify  the  construc- 
tion and  maintenance  of  the  switch,  which  includes  a  showing  as  to 
the  cost  thereof.40 

(b)  In  cases  seeking  the  making  of  through  routes  and  joint  rates. — 
If  it  be  desired  to  secure  a  through  route  and  joint  rates,"  it  is  neces- 
sary to  show  that  the  carriers,  subject  to  the  act,  have  refused  or 
neglected  to  voluntarily  establish  the  same,  and  that  no  satisfactory 
through  route  exists;  what  constitutes  in  law,  a  refusal  or  neglect 
to  voluntarily  establish  a  route,  has  not  been  definitely  determined, 
but  the  usual  evidence  required  to  show  refusal  or  neglect,  would,  in 
all  probability  apply.     The  testimony  concerning  what  constitutes  a 
"satisfactory"  route  would  of  necessity  include  the  service  given  by 
the  existing  route,  whether  or  not  it  be  prompt,  the  length  thereof, 
delays,  etc.    Certain  it  is,  whether  or  not  a  satisfactory  through  route 
exists  is  a  question  of  fact  and  depends  on  the  facts  and  circumstances 
of  each  case.42 

(c)  In  cases  to  secure  continuous  carriage. — The  importance  of  the 

"Nield  v.  C.  St.  P.,  M.  &  O.  E.  Co.  12  I.  C.  C.,  202),  Weleetka  L.  &  P.  Co. 
v.  F.  &  S.  8.  W.  E.  Co.  (12  I.  C.  C.,  503),  McEae  T.  Co.  v.  S.  E.  Co.  (12  I.  C. 
C.,  270),  Barden  v.  S.  &  L.  V.  E.  Co.  (12  I.  C.  C.,  193),  Bahway  V.  E.  Co.  v. 

D.  L.  &  W.  E.  Co.  (14  I.  C.  C.,  191). 

41  Ee  Through  Eoutes  and  Eates   (12  I.  C.  C.,  163),  Loup  Creek  C.  Co.  v.  V. 

E.  Co.  (12  L  C.  C.,  471),  Birmingham  P.  Co.  v.  P.  &  T.  E.  Co.  (12  I.  C.  C.,  29), 
Cattle  Baisers'  Assn.  v.  G.  H.  &  S.  A.  E.  Co.  (12  I.  C.  C.,  469),  Am.  Live  Stock 
Assn.  v.  T.  &  P.  E.  Co.  (12  I.  C.  C.,  32),  Gentry  v.  A.  T.  &  S.  F.  E.  Co.  (13  I. 
C.  C.,  171),  Mchts.  F.  B.  v.  M.  V.  E.  Co.   (13  I.  C.  C.,  243),  Sheetman  v.  C.  & 
N.  W.  E.  Co.  (13  I.  C.  C.,  167),  C.  E.  &  I.  C.  E.  &  L.  Co.  v.  C.    &    N.    W.    E. 
Co.  (13  I.  C.  C.,  250),  Cardiff  C.  Co.  v.  C.  &  N.  W.  E.  Co.   (13  I.  C.  C.,  471), 
Leonard  v.  K.  C.  S.  E.  Co.  (13  I.  C.  C.,  573),  C.  &  M.  E.  E.  Co.  v.  I.  C.  E.  Co. 
(13  I.  C.  C.,  20). 

"Benton  Transit  Co.  v.  B.  H.  St.  J.  E.  &  E.  Co.  (13  L  C.  C.,  542). 


EVIDENCE  BEFORE  COMMISSION  169 

provisions  of  section  7  of  the  act  has  been  lessened  by  the  provisions 
of  the  present  statute  respecting  through  routes  and  joint  rates. 
Where,  however,  there  has  been  an  agreement  between  carriers  in  vio- 
lation of  section  7,  there  is  necessity  for  evidence  to  show  the  contract 
and  its  terms,  that  it  results  in  preventing  continuous  carriage  of 
freight;  the  defendant  may  set  up  the  equities  that  the  public  inter- 
ests do  not  require  the  relief  sought.48 

(d)  In  cases  seeking  to  compel  the  issuance  of  a  receipt  or  bill  of 
lading  as  required  by  section  20. — The  provisions  of  section  20  re- 
specting the  issuance  of  a  receipt  or  bill  of  lading  are  mandatory. 
Whether  or  not  the  Commission  has  jurisdiction  to  prescribe  a  bill  of 
lading  is  uncertain,  although  it  has  recommended  a  document."    If 
the  Commission  has  jurisdiction  in  such  cases,  it  is  clear  that  there 
needs  be  proven  that  the  carrier  is  handling  the  traffic  named  and 
fails  to  issue  such  a  receipt  or  bill  of  lading  as  prescribed. 

(e)  In  cases  to  compel  the  publication,  filing  and  posting  of  tariffs. 
— Where  a  complaint  alleges 4S  that  a  carrier  has  failed  to  comply  with 
the  provisions  of  section  6,  concerning  the  filing  and  posting  of  tar- 
iffs it  is  necessary  to  show  that  the  carrier  is  subject  to  the  act,  and 
that  the  tariff  is  one  required  to  be  published,  filed  and  posted,  and 
that  the  carrier  has  failed  to  do  so.     In  this  connection  it  needs  be 
recalled  that  in  pursuance  of  the  authority  conferred  by  this  section 
the  Commission  has  prescribed  and  determined  the  form  of  schedules 
and  by  order  fixed  the  requirements  respecting  publishing,48  posting 
and  filing  of  tariffs  (Tariff  Circulars  Nos.  15-A;  16-A). 

EVIDENCE  NECESSARY  UNDER  DECISIONS  WHERE  STATUTE  IS  SILENT 

It  will  be  observed  that  wherever  the  statute  uses  the  qualifying 
words  "undue,"  "unjust,"  "unreasonable"  and  the  like,  it  has  be- 
come the  duty  of  the  Commission  and  the  courts  to  interpret  them  and 
from  such  interpretation  one  must  ascertain  the  evidence  necessary  to 
show  that  the  subject  of  the  complaint  or  investigation  is  within  the 
inhibitions  of  the  act.  The  evidence  in  such  cases  is  indicated  in  the 
following  alleged  violations  of  the  act : 

(f )  In  cases  alleging  the  failure  to  furnish  facilities  for  interchange 
of  traffic. — A  complaint  alleging  the  failure  to  furnish  facilities  for  the 
interchange  of  traffic  must  be  supported  by  evidence  that  the  proposed 

«Ky.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (2  I.  C.  C.,  162),  on  the  facts  of  this 
case  the  circuit  court  held  that  this  section  had  not  been  violated  (37  Fed.,  567). 
For  other  cases  construing  section  7,  by  the  Commission,  see  section  66,  ante. 

**Ee  Bills  of  Lading  (14  I.  C.  C.,  346),  see  for  carriers  liability  under  bills 
of  lading,  Ee  Eeleased  Eates  (13  I.  C.  C.,  550). 

"The  petition  in  Am.  Asphalt  Assn.  v.  Uintah  E.  Co.  (13  I.  C.  C.,  196), 
sought  the  filing  and  publication  of  rates  as  well  as  other  relief. 

48  The  publication  required  by  the  act  is  for  the  inspection  and  information  of 
the  public  (G.  C.  &  S.  F.  E.  Co.  v.  Henley,  158  U.  S.,  101). 


170  EVIDENCE  BEFORE  COMMISSION 

facilities  are  reasonable  and  proper,  for  only  such  are  within  the  pur- 
view of  the  provision ; 4T  that  the  interests  of  the  roads  require  the 
interchange.*8  But  if  it  be  shown  that  the  circumstances  are  dis- 
similar, the  complaining  carrier  is  not  entitled  to  the  relief  sought." 
The  burden  of  proof  is  on  the  petitioning  carrier  to  show  that  there 
is  a  discrimination  under  the  statute.80 

This  clause  is  not  to  receive  the  construction  as  is  applied  to  the 
corresponding  English  clause,  as  the  provisions  are  not  similar." 

(g)  In  cases  alleging  a  violation  of  the  long  and  short  haul  sec- 
tion.— Where  a  complaining  shipper  alleges  a  violation  of  section  4, 
he  must  prove  that  the  carrier  is  subject  to  the  act,  that  it  charges  and 
receives  a  greater  compensation  in  the  aggregate  for  the  transporta- 
tion of  like  kind  of  property,  under  substantially  similar  circum- 
stances and  conditions,  for  a  shorter  than  for  a  longer  distance,  over 
the  same  line  in  the  same  direction,  the  shorter  being  included  within 
the  longer. 

It  needs  be  noted  that  the  use  of  the  word  ' '  line ' '  in  this  section  is 
not  synonomous  with  " railroad;  "  "the  use  of  the  word  'line'  is  sig- 
nificant. Two  carriers  may  use  the  same  road  but  each  has  its  sep- 
arate line.  The  defendant  may  lease  trackage  rights  to  any  other 
railroad  company,  but  the  joint  use  of  the  same  track  does  not  create 
the  same  line,  so  as  to  compel  either  company  to  graduate  its  tariff 
by  that  of  the  other"  (C.  &  N.  W.  E.  Co.  v.  Osborne,  52  Fed.,  912). 

Concerning  similarity  of  circumstances  and  conditions,  see  post, 
this  section  "Applications  for  relief  under  the  long  and  short  haul 
section." 

(h)  In  applications  l)y  carriers  for  relief  from  the  long  and  short 
haul  section. — In  applications  by  carriers  to  the  Commission  for  re- 
lief under  the  long  and  short  haul  section  (sec.  4)  the  petitioner  is 
under  the  necessity  of  showing  that  by  reason  of  competition  it  is 
compelled  to  charge  less  for  the  longer  than  the  shorter  distance  or 
lose  its  share  of  the  traffic.  It  may  be  that  the  carrier  causing  the 
competition  is  not  subject  to  the  jurisdiction  of  the  Commission,  or 
for  good  business  reasons,  it  may  publish  rates  in  conformity  with  the 
act,  which  would  be  a  violation  of  the  act  by  the  petitioning  carrier, 
but  which  the  latter  desires  to  meet.52 

In  applications  for  relief  under  the  fourth  section  of  the  act  the 
carrier  is  not  limited  to  showing  substantial  dissimilarity  of  circum- 

«T  O.  S.  L.  &  U.  N.  E.  Co.  v.  N.  P.  E.  Co.  (51  Fed.,  465). 
«L.  E.  &  M.  E.  Co.  v.  St.  L.  S.  W.  E.  Co.  (63  Fed.,  775). 
»L.  E.  &  M.  E.  Co.  v.  St.  L.  S.  W.  E.  Co.   (63  Fed.,  775),  O.  S.  L.  &  U.  N. 
E.  Co.  v.  N.  P.  E.  Co.  (51  Fed.,  465). 

"  O.  S.  L.  &  "U.  N.  E.  Co.  v.  N.  P.  E.  Co.  (51  Fed.,  465). 
81  O.  S.  L.  &  U.  E.  Co.  v.  N.  P.  E.  Co.   (61  Fed.,  158). 
™  See  section  66,  ante. 


EVIDENCE  BEFORE  COMMISSION  171 

stances  but  may  present  every  material  reason  in  favor  of  the  applica- 
tion.68 

There  is  great  difficulty  in  stating  what  constitutes  "similar  cir- 
cumstances and  conditions."  The  similarity  must  be  substantial  in 
order  that  the  relief  be  granted  and  the  similarity  must  be  so  great 
as  to  justify  the  greater  charge  for  a  shorter  line.5*  One  of  the  most 
frequent  elements  urged  to  create  a  dissimilarity  of  conditions  is  the 
existence  of  competition58  between  rival  carriers,  and  it  is  proper  to 
consider  the  interests  of  the  public  shippers,  consumers  and  carriers.8* 
The  burden  of  proof  is  on  the  party  complaining87  but  the  doubt,  if 
it  exists,  is  to  be  resolved  in  favor  of  the  similarity  of  conditions.88 

(i)  In  cases  to  determine  the  just  and  reasonably  charge  to  be  paid 
by  the  carrier  for  a  service  performed  by  the  shipper. — The  amend- 
ment of  June  29,  1906,  gave  to  the  Commission  power  to  determine 
what  is  a  reasonable  charge  to  be  paid  by  the  carrier  for  a  service 
rendered  or  an  instrumentality  furnished  by  a  shipper.8"  The  purpose 
of  this  provision  is  that  a  system  of  so-called  legalized  rebating  is 
said  to  have  grown  up ;  that  industrial  roads  were  receiving  inordinate 
parts  of  the  through  rates,  that  elevators  were  receiving  large  sums 
for  transferring  and  cleaning  grain,  and  that  private  cars  secured 
transportation  for  their  owners  at  less  than  the  published  rates. 

Where  one  seeks  to  have  fixed  for  himself  or  itself,  the  rate  to  be 
paid  for  the  service  performed  or  the  instrumentality  furnished,  it 
is  necessary  to  show  the  cost  of  doing  the  service  or  furnishing  the 
instrumentality  and  the  value  thereof  to  the  other  party.  The  charge 
must  be  reasonable  and  its  reasonableness  must  depend  on  the  facts 
and  circumstances  of  each  case.  No  rule  of  what  constitutes  reason- 
ableness can  be  laid  down  for  it  is  usually  a  mixed  question  of  law 
and  fact.60 

(j)  In  cases  involving  unreasonable  and  unjust  practices. — Where 
one  seeks  relief  from  unreasonable  or  unjust  regulations  or  practices 
under  section  15  the  testimony  needs  to  be  directed  not  alone  to  what 
the  regulation  or  practice  is.  The  mere  statement  of  either  is  rarely, 
if  ever,  an  indication  of  anything.  What  is  required  in  such  cases, 

88  E.  Com.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324). 
"I.  C.  C.  v.  E.  T.  V.  &  G.  E.  Co.  (85  Fed.,  107). 
"A.  T.  &  S.  F.  E.  Co.  v.  D.  &  E.  G.  E.  Co.  (110  U.  S.,  683). 
ML.  &  N.  E.  Co.  v.  Behlmer  (175  U.  S.,  648),  T.  &  P.  E.  Co,  v.  I.  C.  C.,  162 
U.  S.,  197). 

67  Junod  v.  C.  &  N.  W.  B,  Co.  (47  Fed.,  290),  D.  G.  H.  &  M.  E.  Co.  v.  I.  C.  C. 
(74  Fed.,  839),  I.  C.  C.  v.  A.  T.  &  S.  F.  E.  Co.   (50  Fed.,  295),  Osborne  v.  C. 
&  N.  W.  E.  Co.  (48  Fed.,  49). 

68  U.  P.  E.  Co.  v.  T.  &  P.  E.  Co.   (31  Fed.,  862),  I.  C.  C.  v.  C.  N.  O.  &  T. 
P.  E.  Co.  (56  Fed.,  925). 

58  See  suggestions  to  counsel  for  points  in  reargument  in  Matter  of  Allow- 
ances to  Elevators  (13  I.  C.  C.,  498). 

"Standard  Oil  Co.  v.  Van  Elten  (107  U.  S.,  325). 


172  EVIDENCE  BEFORE  COMMISSION 

in  addition  to  a  description  of  the  regulation  or  practice,  is  how  it 
affects  the  parties  and  to  what  extent. 

The  practice  may  be  local  or  be  in  use  over  a  large  territory ;  it  may 
be  of  long  standing  or  of  recent  invention.  Though  inconvenient  at 
times  it  may  not  be  onerous;  though  troublesome,  it  may  not  be 
burdensome.  Though  the  cause  of  worry  and  annoyance,  it  may  be 
necessary  for  the  protection  of  the  carrier  and  others,  and  not  be 
within  the  inhibition  that  regulations  or  practices  shall  not  be  unjust 
or  unreasonable,  or  unjustly  discriminatory  or  unduly  preferential  or 
prejudicial.  What  is  said  later  in  this  section  concerning  the  testi- 
mony necessary  to  show  a  rate  unjust  or  unreasonable  or  unduly  dis- 
criminatory is  equally  applicable  to  regulations  and  practices. 

Not  all  practices  and  regulations  of  carriers  are  subject  to  the 
jurisdiction  of  the  Commission  for  only  those  ''affecting  rates"  can 
be  the  basis  of  an  order. 

(k)  In  cases  involving  unjust  discrimination  between  persons. — The 
statute  does  not  define  what  is  meant  by  the  term  ' '  unjust  discrimina- 
tion;" the  Supreme  Court  interpreting  these  words  in  I.  C.  C.  v.  B. 
&  0.  E.  Co.  (145  U.  S.,  263),  said: 

In  order  to  constitute  an  unjust  discrimination  under  section  2,  the  carrier 
must  charge  or  receive  directly  from  one  person  a  greater  compensation  than  for 
another,  or  must  accomplish  the  same  thing  indirectly  by  means  of  a  special  rate, 
rebate,  or  other  device;  but,  in  either  case,  it  must  be  for  a  "like  and  con- 
temporaneous service  in  the  transportation  of  a  like  kind  of  traffic  under  sub- 
stantially the  same  circumstances  and  conditions." 

In  U.  S.  v.  Hanley  (71  Fed.,  674),  the  court  said: 

The  conception  of  discrimination  necessarily  involves  at  least  two  questions 
of  shipment,  one  of  which,  in  the  matter  of  rates,  has  fared  better  than  the 
other,  though  both  by  reason  of  their  similitude,  in  those  features  named  by  the 
act,  should  have  fared  alike. 

The  evidence  necessary  to  be  adduced  in  order  that  a  case  of  un- 
just discrimination  may  be  made  out  results  from  a  definition  given 
to  the  term  by  the  courts,  in  that  there  must  be  shown  in  one  of  two 
shipments  that  one  person  has  paid  a  greater  compensation  for  the  ser- 
vices rendered  in  the  transportation  of  property  (which  must  be  sub- 
ject to  the  act),  than  another  has  paid  for  a  like  and  contemporaneous 
service  in  the  transportation  of  a  like  kind  of  traffic  under  substantial- 
ly similar  circumstances  and  conditions.  Not  only  must  another  have 
paid  a  less  compensation  than  the  complainant,  but  it  must  have  been 
to  such  an  extent,  under  the  provisions  of  this  section,  that  the  dis- 
crimination shall  be  "unjust,"  for  only  unjust  and  unreasonable 
discriminations  are  prohibited ;  "•  Further,  there  must  be  shown  such 
a  similarity  of  circumstances  and  conditions,  as  to  bring  the  transac- 

"I.  C.  C.  v.  B.  &  O.  K.  Co.  (145  U.  S.,  263),  T.  &  P.  K.  Co.  v.  I.  C.  C.  (162 
U.  S.,  197). 


EVIDENCE  BEFORE  COMMISSION  173 

tion  within  the  prohibition  of  the  section,  for  only  those  discrimina- 
tions are  unlawful  where  the  circumstances  and  conditions  are  sim- 
ilar.82 

Similarity  of  circumstances  and  conditions  is  a  question  of  fact,  to 
be  determined  upon  the  evidence  adduced,88  but  competition  between 
rival  routes  is  not  to  be  considered  as  creating  substantially  similar 
circumstances  and  conditions,8*  this  section  differing  in  this  respect 
from  section  4.  The  term  "like  kind  of  traffic,"  means  traffic  similar 
in  character  and  cost  of  transportation,  but  not  necessarily  identically 
similar.88 

(1)  In  cases  involving  the  reasonableness  of  rates. — There  is  no 
more  difficult  question  to  determine  than  whether  or  not  a  stated  rate 
for  transportation  is  reasonable.68  Thoroughly  sincere  individuals  will 
always  differ  concerning  a  particular  rate;  they  may  honestly  differ 
because  of  their  unconscious  beliefs,  due  to  their  previous  training 
or  present  occupation;  the  maker  of  the  rate  must  justify  it,  while 
he  who  attacks  it  must  be  in  a  position  to  sustain  his  allegations. 

62 1.  C.  C.  v.  B.  &  O.  E.  Co.  (145  U.  S.,  263),  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162 
U.  S.,  197). 

63  D.  G.  H.  &  M.  v.  I.  C.  C.  (74  Fed.,  803). 

64 1.  C.  C.  v.  A.  M.  E.  Co.  (168  U.  S.,  144),  Wight  v.  I.  C.  C.  (167  U.  S.,  512). 
Some  earlier  cases  indicated  the  contrary;  I.  C.  C.  v.  L.  &  N.  E.  Co.  (73  Fed., 
409),  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197),  I.  C.  C.  v.  B.  &  O.  E.  Co.  (145 
U.  S.,  263),  I.  C.  C.  v.  T.  &  P.  E.  Co.  (57  Fed.,  948). 

85  N.  Y.  B.  of  T.  v.  P.  E.  Co.  (4  I.  C.  C.,  447). 

86  In  the  17th  Annual  Beport  of  the  Interstate  Commerce  Commission   (p.  54) 
it  said:     "It  is  often  difficult  to  say  what  constitutes  a  reasonable  rate,  and 
more  difficult  to  give  in  detail  the  reasons  that  lead  to  the  conclusion  reached; 
that  although  the  Supreme  Court  of  the  United  States  had  given  certain  rules 
by  which  to  test  the  reasonableness  of  transportation  charges,  and  although  the 
Commission  has  endeavored  to   apply  those  rules,  yet  whenever  it   has  interro- 
gated railway  officials  as  to  whether  or  not  they  are  governed  by  them  making 
rates  of  transportation  they  have  invariably  answered  in  the  negative  and  said 
that  to  do  so  would  be  impracticable.     The  carriers  do  not  apparently  possess 
the  necessary  data  for  that  purpose,  and  there  is  at  present  no  other  source 
from  which  the  Commission  can  obtain  such  data. ' ' 

Addressing  the  Senate  Committee  on  Interstate  Commerce,  S.  H.  Cowan  of 
Forth  Worth,  Tex.  (Eegulation  of  Bailway  Bates,  1904-1905,  Volume  1,  p.  58) 
said:  "Those  who  have  not  investigated  the  requirements  to  ascertain  what  is 
a  reasonable  rate  have  no  idea  of  the  size  of  the  task  before  you.  You  find 
that  you  have  to  hear  so  much  testimony.  How  would  you  start  out  to  deter- 
mine whether  a  rate  is  reasonable?  What  are  the  elements  of  reasonableness? 
To  arrive  at  an  ultimate  intelligent  judgment  you  must  reason  from  details.  The 
Supreme  Court  says  that  any  calculation  as  to  reasonableness  of  rates  must  be 
based  on  the  fair  value  of  the  property.  How  are  you  to  determine  the  value  of 
a  railroad?  By  what  its  stocks  and  bonds  sell  for?  If  so,  the  very  rate  itself 
which  make  the  earnings  of  the  road,  would  increase  the  value,  so  that  the  higher 
rate,  the  higher  the  value,  and  the  higher  the  value  the  greater  is  the  basis  of 
earnings.  How  are  you  to  undertake  to  determine  what  sort  of  a  return  a  rail- 
road is  entitled  to?  Is  it  the  rate  of  interest  provided  by  the  laws  of  the  State? 
Is  that  a  fair  return  to  be  expected  by  a  reasonable  man  for  his  large  invest- 
ment in  the  railroad?  What  is  the  percentage?  The  Supreme  Court  says  that 
a  railroad  is  not  entitled  to  earn  merely  for  the  purpose  of  paying  dividends, 
operating  expenses,  interest,  and  fixed  charges,  without  regard  to  the  rights  of 
the  public.  It  says  all  things  which  a  reasonable  man  would  take  into  con- 
sideration." 


174  EVIDENCE  BEFORE  COMMISSION 

The  difficulty  concerning  the  determination  of  the  reasonableness  of 
a  rate  is  primarily  that  the  question  goes  into  the  domain  of  possibil- 
ity; the  question  immediately  resolves  itself  upon  the  remunerative- 
ness  of  the  rate  in  the  past  or  whether  it  will  be  remunerative  in  the 
future.  The  question  is  further  complicated  because  of  the  disagree- 
ment between  the  courts  concerning  the  rules  which  should  govern  the 
making  of  rates  and  the  traffic  officials,  who  state  that  the  rules 
enunciated  by  the  courts  are  not  considered  in  the  making  of  rates. 
The  question  is  also  further  complicated  because  of  the  numerous 
theories  of  the  political  economists  concerning  the  proper  basis  for 
the  adjustment  of  rates.  These  theories  are  divisible  into  two  broad 
lines,  (a)  that  rates  in  general  should  be  based  upon  the  cost  of  trans- 
porting the  traffic;  (6)  that  rates  should  be  based  upon  the  value  of 
the  service  (which  includes  .the  term  "what  the  traffic  will  bear"). 
The  courts  lean  strongly  towards  the  former  theory,  while  merchants 
and  carriers  lean  toward  the  latter. 

Rates  alleged  to  be  unreasonable  may  be  such  by  reason  of  being 
(a)  unreasonable  per  se,  or  (&)  relatively  unreasonable,  and  in  either 
case  it  may  be  a  single  rate  or  a  schedule  of  rates.  No  one  has  at- 
tempted to  define  a  rate  which  is  unreasonable  per  se  and  to  mark  out 
the  rules  by  which  proof  may  be  had  of  the  fact.  It  was  said  by  the 
Commission  in  Mayor,  etc.  v.  A.  T.  &  S.  F.  R.  Co.  (9  I.  C.  C.,  534), 
where  the  question  of  the  reasonableness  of  a  rate  per  se  had  been 
pressed  upon  the  Commission  by  the  complainant,  that ' '  the  testimony 
bearing  upon  it  (the  question)  is  extremely  unsatisfactory  as  it 
probably  must  be  in  any  similar  case." 

The  extreme  limit  that  a  rate  is  unreasonable  per  se  doubtless  is 
that  the  commodity  affected  by  the  rate  does  not  move  between  the 
points  to  which  the  rate  applies  and  yet  the  circumstances  and  con- 
ditions are  such  that  one  would  say  that  the  commodity  should  move 
by  reason  of  the  geographical  location  of  the  points  and  the  character 
of  business  thereat;  in  such  case,  sincere  persons  will  disagree  as  to 
its  reasonableness.  If  one  should  attempt  to  prove  the  rate  unrea- 
sonable per  se  by  a  mathematical  process,  he  will  find  himself  in  a 
maze  of  cost  of  transporting  traffic,  of  the  actual  value  of  the  carrier 's 
property,  of  capitalization,  of  return  upon  the  amount  invested,  of 
volume  of  traffic,  of  length  of  haul,  and  many  other  elements  to  be- 
wilder. If  the  rate  is  that  upon  a  single  commodity  the  maze  is  more 
mystifying,  for  should  there  be  obtainable  from  statistics  the  cost  of 
transportation  the  figure  bears  little  or  no  relation  to  the  rate  under 
consideration. 

Rates  are  relatively  unreasonable,  either  by  reason  of  the  classifica- 
tion or  by  reason  of  the  relation  between  the  commodity  rate  or  the 
class  rate  or  by  reason  of  an  alleged  discrimination  between  localities. 


EVIDENCE  BEFORE  COMMISSION  175 

Evidence  tending  to  show  relative  unreasonableness  is  more  available, 
because  immediately  there  arises  the  question  of  comparison,  itself 
an  element  of  reasonableness.  The  essence  of  reasonableness  of  a 
particular  fact  is  a  comparison  of  that  fact  with  a  reasonable  fact. 
One  therefore  is  permitted  to  compare  the  rate  or  classification  of  the 
commodity  under  consideration  with  other  rates  and  classifications 
of  commodities  used  for  similar  purposes,  preferably  moving  in  the 
same  volume  and  upon  the  same  line  of  railroad,  or  upon  other  lines 
of  railroad.67  The  nearer  identical  the  elements  the  greater  must  be 
the  weight  of  the  evidence. 

The  basis  of  calculation  as  to  the  reasonableness  of  railroad  rates 
was  laid  down  by  the  Supreme  Court  in  1898  and  it  has  since  fol- 
lowed the  rule  there  prescribed;  in  Smyth  v.  Ames  (169  U.  S.,  466) 
the  court  said: 

We  hold,  however,  that  the  basis  of  all  calculation  as  to  the  reasonableness  of 
rates  to  be  charged  by  a  corporation  maintaining  a  highway  under  legislative 
sanction  must  be  the  fair  value  of  the  property  being  used  by  it  for  the  conveni- 
ence of  the  public.  And  in  order  to  ascertain  that  value,  the  original  cost  of 
construction,  the  amount  expended  in  permanent  improvements,  the  amount  and 
market  value  of  its  bonds  and  stocks,  the  present  as  compared  with  the  original 
cost  of  construction,  the  probable  earning  capacity  of  the  property  under  particu- 
lar rates  prescribed  by  statute,  and  the  sum  required  to  meet  operating  expenses, 
are  all  matters  for  consideration  and  are  to  be  given  such  weight  as  may  be  just 
and  right  in  each  case.  We  do  not  say  that  there  may  not  be  other  matters  to 
be  regarded  in  estimating  the  value  of  the  property.  What  the  company  is  en- 
titled to  ask  is  a  fair  return  upon  the  value  of  that  which  it  employs  for  the  public 
convenience.  On  the  other  hand,  what  the  public  is  entitled  to  demand  is  that 
no  more  be  exacted  from  it  for  the  use  of  a  public  highway  than  the  services  ren- 
dered by  it  are  reasonably  worth. 

Where  a  carrier  is  engaged  in  the  transportation  of  both  interstate 
and  intrastate  traffic  the  reasonableness  of  a  particular  rate  or  sche- 
dule of  rates  cannot  be  predicated  upon  the  entire  traffic.  There  must 
be  a  separation  of  the  two  kinds  of  traffic,  for  it  is  not  proper  that  one 
should  bear  the  burden  of  the  other.  In  a  recent  case  w  involving  the 
reasonableness  of  rates  prescribed  by  legislature  the  court  said : 

A  State  can  not  justify  unreasonably  low  rates  for  domestic  transportation 
considered  alone  upon  the  ground  that  the  carrier  is  earning  large  profits  upon 
interstate  business,  over  which,  so  far  as  the  rates  are  concerned,  the  State  has 
no  control,  nor  can  the  carrier  justify  unreasonably  high  rates  on  domestic  busi- 
ness on  the  ground  that  it  will  be  able,  in  that  way,  to  meet  the  losses  on  its 
interstate  business.  Domestic  and  interstate  commerce,  and  the  value  of  the 
property  so  devoted,  must  be  kept  separate  in  determining  reasonableness  of  rates 
for  domestic  commerce. 

87  That  carriers  may  be  so  far  dissimilar  that  no  comparison  of  rates  on  them 
can  be  made,  see  Am.  Asphalt  Assn.  v.  Uintah  E.  Co.  (13  I.  C.  C.,  196). 
«S.  A.  L.  R.  Co.  v.  E.  Com.  (155  Fed.,  792). 


176  EVIDENCE  BEFORE  COMMISSION 

Where  an  advance  in  rates  is  complained  of  the  testimony  takes  a 
broad  scope: 

INSTANCE. — In  Central  Yellow  Pine  Assn.  v.  I.  C.  E.  Co.  (10  I.  C.  C.,  505)  the 
report  of  the  Commission  considered:  (a)  the  association,  its  objects,  and  the 
occupation  of  its  members;  (6)  the  defendants  and  their  location  and  business 
in  the  transportation  of  lumber;  (c)  the  lumber-producing  districts  involved  in 
the  complaint;  (d)  the  advance  complained  of  and  where  effective;  (e)  the 
rates  from  several  points  to  several  points,  the  latter  being  markets;  (/)  the 
divisions  allowed  the  originating  roads  and  the  revenue  earned  by  them;  (g) 
the  history  of  the  fluctuation  in  lumber  rates;  (ft)  the  situation  of  mills  for  the 
manufacture  of  lumber;  (i)  the  history  of  the  lumber  traffic  from  the  particular 
producing  section;  (j)  the  volume  of  lumber  annually  shipped  from  the  pro- 
ducing section;  (fe)  the  amount  of  the  advance  per  car  and  its  effect  in  currency 
on  the  business  of  the  mills;  (J)  prices  for  various  cars  of  lumber  at  several 
markets;  (m)  the  cost  of  manufacturing  lumber  and  the  capital  invested  at 
several  mills;  (n)  the  depreciation  of  mill  property;  (o)  the  increase  in  price 
of  material,  equipment  and  wages  of  the  defendants,  and  the  wages  of  mill 
employees;  (p)  the  operating  expense  of  the  carriers,  including  gross  earnings, 
total  operating  expenses,  percentage  of  operating  expenses,  earnings,  net  earnings, 
net  earnings  per  mile  of  road  and  total  mileage  operated;  (q)  the  profit  to  the 
carriers  under  prior  rates;  (r)  the  capitalization,  funded  debt,  and  cost  of  con- 
struction of  the  carriers  including  dividends  paid  by  them  for  a  series  of  years; 
(s)  the  equipment  of  the  carriers  (cars  and  terminals)  for  handling  traffic;  (t) 
the  character  of  car  required  for  the  commodity;  («)  the  average  loading  of 
cars  and  the  capacity  leading,  and  (v)  the  total  lumber  tonnage  of  the  United 
States  and  a  comparison  with  the  tonnage  with  other  commodities  heavy  in  vol- 
ume. 

The  evidence  necessary  in  a  case  involving  the  reasonableness  of  a 
rate  on  a  single  commodity  between  given  places  is  indicated  by  the 
points  considered  in  the  opinion  of  the  Commission  in  Am.  Asphalt 
Assn.  v.  Uintah  R.  Co.  (13  I.  C.  C.,  196).  The  question  involved  the 
rate  on  gilsonite  from  Dragon,  Utah,  to  Mack,  Colorado.  While  the 
question  turned  almost  exclusively  upon  the  remunerativeness  to  the 
carrier  of  the  property  used  for  the  convenience  of  the  public  the 
Commission  considered: 

(a)  the  ownership  of  the  defendant  carrier;  (&)  the  business  occupation  of 
the  owners  of  the  defendant;  (c)  the  occupation  of  the  complainant;  (d)  the 
character  of  the  commodity,  its  use,  where  found,  and  the  method  of  mining  and 
transportation;  (e)  the  reasons  for  constructing  the  defendant  carrier,  as  it  was 
constructed  for  the  special  purpose  of  transporting  gilsonite;  (/)  the  physical 
characteristics  of  the  country  through  which  the  road  runs,  the  method  of  con- 
struction, including  grades  and  curves  and  its  freight  equipment;  (g)  that  after 
the  construction  of  the  road  it  secured  other  freight  than  for  the  handling  of 
which  it  was  constructed;  (ft)  whether  or  not  a  rate  of  50  cents  per  100  pounds 
for  a  54  mile  haul  is  inherently  extortionate  for  a  low  grade  commodity;  (i)  the 
competitive  traffic  at  points  along  the  line  of  the  defendant ;  ( j)  that  the  trans- 
portation of  gilsonite  moved  only  in  one  direction;  (fe)  the  original  cost  of  the 
carrier  compared  with  the  cost  of  reconstruction;  and  (I)  its  earnings  and  ex- 
penses showing  a  net  income  of  about  7  per  cent. 


EVIDENCE  BEFORE  COMMISSION  177 

In  considering  the  value  of  the  services  to  the  shipper  it  is  improper 
to  measure  it  by  the  cost  to  the  shipper  of  performing  the  service : 

INSTANCE. — In  Am.  Asphalt  Assn.  v.  Uintah  E.  Co.  (13  I.  C.  C.,  196)  the 
Commission  said:  "It  is  often  said  that  the  rate  depends  upon  the  value  of 
the  service  to  the  shipper,  and  it  has  been  frequently  claimed  before  this  Com- 
mission that  the  cost  of  performing  the  service  by  the  shipper  himself  might  be 
taken  as  a  measure  of  the  rate  to  be  charged  by  the  carrier.  It  is  seldom  proper 
to  measure  the  reasonableness  of  a  freight  charge  by  what  it  would  cost  the 
shipper  to  perform  the  service  himself  by  other  means;  for  railroads  have  be- 
come a  part  of  a  commercial  and  industrial  whole,  and  must  be  reckoned  as  such 
in  considering  what  may  be  properly  charged  for  their  services." 

(m)  In  cases  involving  the  classification  of  freight. — Cases  involv- 
ing the  classification  of  commodities  for  the  purpose  of  ascertaining 
the  rates  to  be  applied  in  their  transportation  may  fall  at  least  under 
two  heads:  (a)  similar  or  substantially  the  same  articles  being  classed 
in  different  classes  when  it  is  alleged  that  they  should  be  all  placed  in 
the  same  class,  as  in  Stowe-Fuller  Co.  v.  P.  Co.  (12  I.  C.  C.,  215) ; 
or  (6)  where  it  is  claimed  that  a  commodity  is  not  properly  classi- 
fied in  that  it  does  not  bear  the  proper  relation  and  hence  the  correct 
relative  rate  to  articles  in  the  same  and  other  classes,  as  in  National 
Hay  Assn.  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  264),  or  Proctor  & 
Gamble  v.  C.  H.  &  D.  R.  Co.  (9  I.  C.  C.,  440). 

In  the  first  class  of  cases  no  other  evidence  is  required  than  to  show 
that  the  articles  in  different  classes  are  so  near  alike,  of  the  same  size, 
loading  and  the  same  weight  that  the  carrier  is  not  justified  in  dis- 
tinguishing between  commodities  in  the  classification : 

INSTANCE. — In  Stowe-Fuller  Co.  v.  P.  Co.  (12  I.  C.  C.,  215),  where  it  appeared 
that  there  was  no  real  distinction  between  fire,  building,  and  paving  bricks,  ex- 
cept in  their  uses,  the  carrier  was  not  justified  in  making  any  difference  in  the 
rates  upon  them.  The  Commission  said:  "Classification  must  be  based  upon 
a  real  distinction  from  the  transportation  standpoint;  we  can  find  no  such  dis- 
tinction between  these  three  classes  of  brick,  which  are  made  of  the  same  material 
and  come  out  of  the  same  kiln  as  justifies  the  difference  in  rates." 

In  the  second  class  of  cases  it  is  proper,  and  generally  required,  to 
introduce  more  elaborate  evidence.  Such  evidence  will  of  necessity 
fall  under  the  heads  to  be  considered  in  determining  into  which  class 
a  particular  commodity  should  be  placed.  In  Proctor  &  Gamble  Co. 
v.  C.  H.  &  D.  R.  Co.  (9  I.  C.  C.,  440)  the  Commission  said:  "Freight 
classification  is  based  upon  the  relation  which  commodities  bear  to  each 
other  in  such  respects  as  character,  use,  bulk,  weight,  value,  tonnage 
of  volume,  risk,  cost  of  carriage,  ease  of  handling  and  controlling  con- 
ditions caused  by  competition." 

It  will  be  observed  that  under  these  heads  the  testimony  may,  and 
generally  does,  have  a  wide  range,  covering  broadly  every  material 
and  pertinent  fact  which  may  influence  the  transportation  of  the 
commodity : 

INSTANCE.— In  National  Hay  Assn.  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  264) 


178  EVIDENCE  BEFORE  COMMISSION 

the  Commission  considered:  (a)  the  complaining  association,  its  incorporation, 
its  membership,  their  occupation  and  the  relation  which  they  individually  bore 
to  the  producer  and  consumer  of  the  article  involved;  (b)  the  defendants,  the 
territory  covered  by  their  classification,  and  that  the  classification  was  changed 
by  the  concerted  action  of  them;  (c)  the  history  of  the  classification  in  the  par- 
ticular territory,  with  a  description  of  the  several  classes,  and  how  a  classification 
affects  rates;  (d)  the  volume  of  tonnage  used  at  several  centers,  and  the  amount 
of  hay  imported  for  a  series  of  years  prior  and  subsequent  to  the  date  on  which 
the  classification  complained  of  took  effect;  (e)  the  change  per  unit  of  sale  of 
the  commodity  as  affected  by  the  change  in  the  classification;  (/)  the  localities 
producing  hay  for  transportation  and  the  localities  under  the  necessity  of  pur- 
chasing same;  (g)  the  comparison  of  the  classification  under  consideration  with 
the  classifications  in  other  parts  of  the  country;  (h)  the  method  of  baling  hay 
for  transportation  and  the  carting  thereof;  (i)  the  volume  and  value  of  the  hay 
crop  of  the  country  for  a  number  of  years  and  of  particular  localities;  (j)  the 
prices  for  a  series  of  years  in  a  stable  market,  and  the  cost  of  marketing;  (fc) 
the  purpose  for  which  hay  is  used,  and  whether  or  not  other  articles  may  be  sub- 
stituted for  it;  (J)  the  comparison  of  the  articles  in  the  same  present  class  with 
hay  and  the  articles  in  the  class  in  which  hay  formerly  was;  (m)  the  articles 
and  mininum  weights  which  were  advanced  by  the  same  classification  as  changed 
the  classification  of  hay;  (n)  the  total  change  on  hay  transported  in  the  United 
States;  (o)  the  element  of  risk  to  the  carriers;  (p)  the  detention  of  cars  in 
loading  and  unloading  hay  and  a  comparison  of  this  detention  with  cars  laden 
with  other  commodities ;  (g)  the  minimum  weight  provided  in  the  classification  and 
the  capability  of  heavier  loading;  (r)  a  comparison  of  the  movement  of  grain 
and  grain  products  with  that  of  hay;  (*)  average  revenue  per  car  for  hay  and 
other  commodities;  the  earnings  per  car  mile  and  the  dead  weight  per  ear  of  hay 
and  grain;  (£)  the  ability  of  the  carriers  at  all  times  to  carry  all  commodities 
offered  including  a  possible  preference  given  to  good  paying  freight;  («)  the 
rates  per  ton  per  mile  from  several  shipping  stations  to  a  stable  market;  (v) 
the  defense  that  there  had  been  an  increase  in  price  of  lumber  and  other  articles 
used  in  railway  construction,  and  maintenance  and  in  labor;  («;)  the  average 
earnings  per  mile  of  line  in  the  territory  covered  by  the  classification,  with  a 
consideration  of  the  average  per  ton  per  mile  rate  for  the  United  States  for  a 
series  of  years;  (x)  the  earnings  of  the  several  carriers  and  the  rate  of  interest 
paid  by  them  for  a  series  of  years. 

(n)  In  cases  involving  undue  or  unreasonable  prejudice  or  dis- 
advantage to  localities. — In  cases  brought  under  section  3,  alleging 
undue  or  unreasonable  prejudice  or  disadvantage  against  localities  it 
is  proper  to  submit  the  same  evidence  as  in  cases  involving  the  rela- 
tive reasonableness  of  rates  (supra,  this  section,  subdivision  I)  and  the 
relative  geographical  location,  the  number  and  character  of  the  car- 
riers and  water  competition  at  the  complaining  place  as  compared  with 
the  place  alleged  to  have  an  undue  preference  or  advantage. 

(o)  In  cases  involving  undue  prejudice  or  disadvantage  to  particu- 
lar descriptions  of  traffic. — The  evidence  necessary  to  be  adduced  in 
cases  involving  undue  prejudice  or  disadvantage  to  particular  descrip- 
tions of  traffic  necessarily  requires  testimony  comparing  all  of  the  sup- 
posed advantages  and  preferences  of  one  class  or  kind  of  traffic  to 
all  the  supposed  disadvantages  or  prejudices  of  the  other  kind  of 
traffic. 


EVIDENCE  BEFORE  COMMISSION  179 

(p)  In  reparation  cases. — In  reparation  cases  the  evidence  neces- 
sary to  support  any  of  the  particular  cases  above  referred  to  must 
be  introduced  and  as  well  evidence  to  show  the  amount  of  damage  to 
the  complainant.  In  cases  involving  unreasonable  rates  the  amount 
of  reparation  is  computed  on  the  difference  between  the  rate  charged 
and  the  rate  found  reasonable  on  the  shipments  which  actually  moved ; 
in  cases  involving  discriminations  and  prejudice  and  advantage,  the 
usual  rules  respecting  evidence  in  cases  seeking  unliquidated  damages, 
with  such  modifications  as  the  nature  of  the  proceeding  warrants, 
will  serve  as  guides. 

EVIDENCE  IN  GENERAL  INVESTIGATIONS 

In  general  investigations  by  the  Interstate  Commerce  Commission 
under  the  authority  conferred  by  the  act  to  regulate  commerce  *  the 
range  of  evidence  therein  is  marked  out  by  the  order  therefor.  If, 
during  the  hearings  there  is  evidence  which  requires  the  examination 
of  witnesses  upon  collateral  subjects,  it  has  been  the  custom  for  the 
Commission  to  seek  evidence  respecting  such  matters.  The  power  of 
the  Commission  to  secure  evidence  in  the  course  of  general  investiga- 
tions was  recently  considered  by  the  Supreme  Court  in  Harriman  v. 
I.  C.  C.  (No.  315,  October  Term,  1908,  decided  December  15,  1908). 
An  order  had  been  issued  for  a  general  investigation  respecting  the 
consolidations  and  combinations  of  carriers;  during  one  of  the  hear- 
ings certain  questions  were  propounded  the  witness,  Harriman ;  these 
questions  related  to  his  ownership  of  stock  in  competing  and  noncom- 
peting  carriers,  which  questions  on  the  advice  of  counsel  he  declined 
to  answer.  The  Supreme  Court  said : 

The  contention  of  the  Commission  is  that  it  may  make  any  investigation  that 
it  deems  proper,  not  merely  to  discover  any  facts  tending  to  defeat  the  purposes 
of  the  act  of  February  4,  1887,  but  to  aid  it  in  recommending  any  additional 
legislation  relating  to  the  regulation  of  commerce  that  it  may  conceive  to  be 
within  the  power  of  Congress  to  enact;  and  that  in  such  an  investigation  it  has 
power,  with  the  aid  of  the  courts,  to  require  any  witness  to  answer  any  question 
that  may  have  a  bearing  upon  any  part  of  what  it  has  in  mind.  The  contention 
necessarily  takes  this  extreme  form,  because  this  was  a  general  inquiry  started 
by  the  Commission  of  its  own  motion,  not  an  investigation  upon  complaint,  or 
of  some  specific  matter  that  might  be  made  the  object  of  a  complaint.  *  *  * 

The  Commission  it  will  be  seen  is  given  power  to  require  the  testimony  of 
witnesses  ' '  for  the  purposes  of  this  act. ' '  The  argument  for  the  Commission  is 
that  the  purposes  of  the  act  embrace  all  the  duties  that  the  act  imposes  and  the 
powers  that  it  gives  the  Commission;  that  one  of  the  purposes  is  that  the  Com- 
mission shall  keep  itself  informed  as  to  the  manner  and  method  in  which  the 
business  of  the  carriers  is  conducted,  as  required  by  section  12;  that  another 
is  that  it  shall  recommend  additional  legislation  under  section  21,  to  which  we 
shall  refer  again,  and  that  for  either  of  these  general  objects  it  may  call  on  the 
courts  to  require  any  one  whom  it  may  point  out  to  attend  and  testify  if  he  would 
avoid  the  penalties  for  contempt. 

"See  sec.  33.    ante. 


180  EVIDENCE  BEFORE  COMMISSION 

We  are  of  the  opinion  on  the  contrary  that  the  purposes  of  the  act  for  which 
the  Commission  may  exact  evidence  embrace  only  complaints  for  violation  of  the 
act,  and  investigations  by  the  Commission  upon  matters  that  might  have  been 
made  the  object  of  complaint.  *  *  *  The  power  to  require  testimony  is 
limited,  as  it  usually  is  in  English-speaking  countries  at  least,  to  the  only  cases 
where  the  sacrifice  of  privacy  is  necessary — those  where  the  investigations  con- 
cern a  specific  breach  of  the  law.  *  *  * 

If  we  did  not  think,  as  we  do,  that  the  act  clearly  showed  that  the  power 
to  compel  the  attendance  of  witnesses  was  to  be  exercised  only  in  connection  with 
the  quasijudicial  duties  of  the  Commission,  we  still  should  be  unable  to  sup- 
pose that  such  an  unprecedented  grant  was  to  be  drawn  from  the  counsels  of 
perfection  that  have  been  quoted  from  sections  12  and  21.  We  could  not  be- 
lieve on  the  strength  of  other  than  explicit  and  unmistakable  words  that  such 
autocratic  power  was  given  for  any  less  specific  object  of  inquiry  than  a  breach 
of  existing  law,  in  which,  and  in  which  alone,  as  we  have  said,  there  is  any 
need  that  personal  matters  should  be  revealed. 

It  seems  therefore  that  the  power  of  the  Interstate  Commerce  Com- 
mission respecting  securing  evidence  in  general  investigations  is  to  be 
confined  to  such  evidence  as  would  be  included  in  alleged  violations  of 
the  act  and  that  general  investigations  must  be  confined  to  matters  that 
may  be  made  the  object  of  a  complaint. 

IN  SPECIAL  INVESTIGATIONS 

In  special  investigations  made  by  the  Interstate  Commerce  Com- 
mission pursuant  to  legislative  resolutions  the  scope  of  the  evidence 
must  be  ascertained  from  the  authority  conveying  power  to  make  the 
investigations. 

IN  INFORMAL  COMPLAINTS 

Strictly  speaking  there  is  no  evidence  in  informal  complaints,  both 
the  shipper  and  carrier  stating  the  facts  and  arguments  of  the  cause 
of  complaint  and  the  defense. 


CHAPTER  VIII 
PROCEEDINGS  AFTER  ORDER 


Sec.  151.  Proceedings  after  order. — If  a  party  be  dissatisfied  with 
the  order  issued  by  the  Commission l  the  right  to  subsequent  proceed- 
ings is  dependent  upon  the  character  of  the  order  and  in  whose  favor 
it  is  issued.  The  statute  is  wanting  in  mutuality  concerning  pro- 
ceedings after  final  disposition  of  a  case  by  the  Commission;  either 
party  to  a  proceeding  may  apply  for  a  rehearing,  but  when  this  has 
been  denied  the  defeated  complainant  has  no  further  remedy  pro- 
vided for  him  by  the  statute  while  the  defeated  defendant  carrier  is 
provided  a  remedy  whereby  the  decision  of  the  Commission  may  be 
reviewed. 

Sec.  152.  Rehearings. — Whatever  the  character  of  order,  if  one  de- 
termine to  undertake  subsequent  proceedings  it  is  proper,  under  the 
familiar  rule  that  one  ought  to  exhaust  his  remedy  in  the  tribunal  of 
first  instance  before  proceeding  by  way  of  appeal  or  review,  to  apply 
for  a  rehearing.  Rehearings  are  provided  for  by  section  16aa — a 
part  of  the  act  of  June  29,  1906.8  Previous  to  the  passage  of  this  act 
no  power  had  been  given  the  Commission  to  grant  rehearings.4 

Rehearings  may  be  applied  for  by  any  party  to  the  proceeding  and 
the  application  may  request  rehearing  of  the  entire  case  or  any  mat- 
ter determined  therein.  The  statute  permits  the  Commission  in  its 
discretion5  to  grant  a  rehearing  if  a  sufficient  reason  be  made  to 
appear. 

The  application  for  rehearing  does  not  act  as  a  stay  or  excuse  the 
defendant  from  complying  with  or  obeying  the  order  or  requirement 
of  the  Commission,  nor  does  the  application  postpone  the  enforce- 
ment of  the  order  unless  the  Commission  so  direct. 

1  For  kinds  of  orders  which  the  Commission  may  issue,  see  section  35,  ante. 

1  Appendix. 

8  34  Stat.  L.,  584. 

4  But  the  Commission  under  the  former  act  permitted  rehearings ;  for  example 
see  Kiddle,  Dean  &  Co.  v.  P.  &  L.  E.  R.  Co.  (1  I.  C.  C.,  490). 

"The  object  of  granting  new  trials  at  common  law  applies  to  rehearings  before 
the  Commission.  In  Bright  v.  Eynon  (1  Burr.,  395)  Lord  Mansfield  said:  "The 
rule  laid  down  by  Lord  Parker,  in  the  case  of  Reg.  v.  Helston,  H.  12  Ann.  B.  R. 
(Lucas's  Rep.,  202),  seems  to  be  the  best  general  rule  that  can  be  laid  down  upon 
this  subject,  viz.,  'doing  justice  to  the  party,'  or,  in  other  words,  'attaining  the 
justice  of  the  case.'  The  reasons  for  granting  a  new  trial  must  be  collected 
from  the  whole  evidence,  and  from  the  nature  of  the  case  considered  under  all 
its  circumstances." 


182  PROCEEDINGS  AFTER  ORDER 

The  statute  gives  to  the  Commission  power  to  establish  general 
rules  to  govern  rehearings.  Under  such  powers  the  Commission  has 
established  a  rule  of  practice  relating  to  rehearings  (Rule  XV,  Ap- 
pendix). The  Commission  has  interpreted  the  term  "rehearing"  to 
include  two  methods  of  reconsideration :  (a)  a  reopening  of  the  case 
for  the  purpose  of  introducing  additional  evidence,  and  ( b ) ,  a  rehear- 
ing in  the  nature  of  a  reargument  to  correct  alleged  errors  of  findings 
of  fact  or  conclusions  of  law.  Applications  for  rehearing  must  be  in 
writing ;  no  oral  argument  thereon  is  provided  for. 

In  either  case  a  petition  is  filed  and,  if  it  is  for  a  reopening  of  the 
case  and  it  be  desired  to  introduce  the  additional  evidence,  the  nature 
and  purpose  of  such  evidence  must  be  stated;  the  evidence  must  be 
of  such  character  as  will  tend  to  controvert  the  findings  of  fact,  there- 
by changing  the  conclusions  of  law,  for  mere  cumulative  evidence  will 
not  be  deemed  sufficient  ground  to  reopen  a  case.  Should  the  appli- 
cation be  for  a  rehearing  in  the  nature  of  a  reargument,  the  practi- 
tioner will  specify  such  errors  as  he  would  in  an  action  of  law;  as 
elsewhere  stated,  however,  exceptions  to  evidence  avail  nothing  and 
one  is  compelled  to  take  the  record  broadly  if  the  error  be  one  for  al- 
leged introduction  of  evidence  which  ought  not  to  have  been  received 
or  the  rejection  of  evidence  which  ought  to  have  been  admitted. 

If  the  purpose  of  the  application  be  to  introduce  evidence  tending 
to  show  a  change  of  circumstances  and  conditions  arising  subse- 
quently to  the  argument,  or  seek  the  promulgation  of  an  order  for 
the  purpose  of  modifying  the  decision,  order  or  requirement,  or  re- 
versing it,  one  must  set  forth  such  matter  as  is  relied  upon  fully  and 
completely;  although  the  rules  do  not  so  provide,  perhaps  such  ap- 
plication should  be  verified  in  order  that  the  bona  fides  of  the  applica- 
tion may  be  apparent.  Rehearings  of  this  kind  may  be  granted  in 
appropriate  cases  before  a  decision. 

Rehearings  will  not  be  granted  where  evidence  is  cumulative  or 
where  reargument  would  not  change  the  result: 

INSTANCE. — In  Eiddle,  Dean  &  Co.  v.  P.  &  L.  E.  K.  Co.  (1  I.  C.  C.,  490)  upon 
application  for  a  rehearing  the  Commission  said: 

"We  have  carefully  considered  the  application  made  in  the  brief  of  petition- 
ers' counsel  for  a  rehearing  in  this  proceeding,  and  are  constrained  to  deny 
it  on  the  ground  that  no  argument  of  counsel  upon  the  evidence  could  change 
the  result  announced  in  our  previous  report  and  opinion  by  which  the  petition 
was  dismissed.  We  feel  it  to  be  due  to  candor  as  well  as  justice  to  say  that  a 
reargument  by  the  counsel  of  the  parties  upon  a  rehearing  would  be  a  mere  waste 
of  time  in  addition  to  the  unnecessary  expense  it  would  cause  the  parties  and 
the  useless  labor  it  would  entail  upon  their  counsel.  If,  upon  the  whole  evidence, 
we  could  see  it  was  possible  that  any  argument  of  counsel  could  change  the  re- 
sult we  would  unhesitatingly  grant  the  application  for  a  rehearing. 

"The  main,  controlling  and  general  grounds  upon  which  we  decided  to  dis- 
miss the  petition,  as  set  forth  in  our  report  and  opinion,  are  not  controverted  or 


PROCEEDINGS  AFTER  ORDER  183 

questioned  in  the  application  for  a  rehearing,  nor,  indeed,  do  we  see  how  they 
could  be,  but  several  particulars  are  mentioned  in  which  it  is  claimed  we  were 
mistaken  in  our  findings  upon  the  evidence.  Two  of  these  we  notice  briefly,  the 
others  having  been  disposed  of  in  our  previous  report  and  opinion  in  accord- 
ance with  the  weight  of  the  evidence.  *  *  *  As  this  is  the  first  applica- 
tion we  have  had  for  a  rehearing,  it  may  also  not  be  improper  for  us  to  state 
in  this  connection,  as  every  one  of  our  reports  and  opinions  will  show  upon  its 
face,  that  in  every  case  before  us  our  findings  upon  the  evidence  relate  only 
to  the  ascertainment  of  all  the  material  facts  necessary  to  fairly  and  justly  pre- 
sent the  merits  of  the  controversy,  and  that  to  such  facts  as  arise  from  imma- 
terial or  irrelevant  evidence  we  give  them  no  place  in  our  reports  and  opinions. 
To  do  otherwise  would  be  to  make  a  book  out  of  a  case  like  the  present,  which 
contains  more  than  300  pages  of  printed  evidence  and  equally  as  much  of  written 
manuscript,  and  would  accomplish  no  useful  or  just  purpose  whatever. 

"Where  the  delinquency  charged  is  in  the  nature  of  a  fraud,  as  in  the 
present  case,  under  the  rules  of  law  a  wide  range  is  allowed  in  the  evidence  that 
the  complainants  may,  if  they  can,  show  the  existence  of  the  fraud,  barricaded 
as  it  may  be  by  devices,  inventions,  subterfuges  or  pretences,  and  it  is  indis- 
pensable to  truth  and  justice  that  such  latitude  should  be  allowed.  The  party 
accused  must  in  fairness  and  justice  be  allowed  a  correspondingly  wide  latitude 
in  the  evidence  to  show  innocence  of  the  fraud  imputed  to  him.  A  great  mass  of 
evidence  is  the  result.  Some  of  it  is  merely  circumstantial;  some  of  it  is  unavoid- 
ably cumulative;  other  portions  of  it  would  be  wholly  irrelevant  if  not  in- 
separably connected  with  some  fact  that  is  relevant;  much  of  it  is  immaterial; 
large  portions  of  it  are  explanatory,  and  thus  it  is  presented  in  oral  examinations, 
depositions,  and  documentary  evidence. 

' '  Under  such  circumstances  when  we  have  patiently  and  laboriously  sifted  out 
all  the  material  facts  necessary  to  fairly  and  justly  present  the  merits  of  the 
controversy,  with  our  conclusions  thereon,  we  have  done  all  that  the  statute 
authorizes  or  requires  us  to  do.  The  statute  deals  with  the  substance  of  things, 
and  contemplates,  as  far  as  this  is  possible,  methods  of  procedure  that  are 
speedy  and  which  come  at  once  to  the  very  right  of  questions  rising  in  the  trans- 
portation of  persons  and  freight ;  and  while  in  its  administration  we  will  al- 
ways cheerfully  and  carefully  examine  and  consider  all  applications  for  rehear- 
ings  by  a  party  to  any  proceeding  decided  by  us  who  will  point  out  any  errors 
he  may  think  we  may  have  committed,  either  of  law  or  fact,  with  a  view  to  their 
prompt  correction,  if  found  to  exist,  yet  we  will  not  in  any  proceeding  direct  a 
rehearing  involving  the  expense  to  parties  of  appearing  before  us  for  a  re- 
argument  of  the  ease  and  the  further  consumption  of  time  on  our  part,  which 
belongs  to  the  public,  unless  satisfied  that  such  reargument  might  have  the  ef- 
fect of  changing  the  result  of  what  we  have  already  done."  Application  denied. 

A  petition  to  reopen  a  case  for  further  testimony  and  rehearing 
should  be  verified  and  indicate  the  nature  of  the  new  testimony  and 
its  purpose." 

Where  upon  a  complaint  with  liberal  proceedings  and  proof  there 
has  been  a  determination  by  the  Commission  and  parties  to  the  rec- 
ord have  not  applied  for  a  rehearing  the  Commission  will  not  grant 
an  application  made  by  others  not  parties  to  the  proceeding;  but 

•Eice  E.  &  W.  v.  W.  N.  Y.  &  P.  E.  Co.  (3  I.  C.  C.,  87),  the  petition  must 
show  prima  facie  that  material  testimony  has  been  overlooked  or  misapprehended. 
(Proctor  &  Gamble  v.  C.  C.  C.  &  St.  L.  E.  Co.,  4  I.  C.  C.,  443 ;  Myers  v.  Pa.  Co., 
3  I.  C.  C.,  130;  Bishop  v.  Duval,  receiver,  3  I.  C.  C.,  128). 


184  PROCEEDINGS  AFTER  ORDER 

should  another  case  be  filed,  and  the  Commission's  decision  in  the 
first  case  be  proved  erroneous  in  any  particular  the  Commission  will 
feel  it  to  be  a  duty  to  correct  its  conclusion.1  A  general  investigation, 
however,  was  reopened  upon  a  petition  for  rehearing  by  mercantile 
organizations,  it  being  claimed  that  the  prior  opinion  was  unfair.8 

And  when  a  question  of  general  public  interest  is  involved,  the 
Commission  in  its  discretion  and  for  the  furtherance  of  justice  may 
reopen  a  case  to  give  to  the  parties  the  benefit  of  a  more  extended 
investigation.* 

The  Commission  is  not  liberal  in  granting  applications  for  a  rehear- 
ing, such  errors  must  be  shown  as  will  clearly  indicate  that  the  de- 
cision of  the  Commission  is  incorrrect.10 

Sec.  153.  Modification  of  orders. — While  the  Commission  exercised 
authority  to  modify  its  orders  prior  to  the  passage  of  the  act  of  June 
29,  1906,  it  is  given  specific  power  to  do  so  by  that  act. 

Section  15  provides  that  orders  other  than  orders  for  the  payment 
of  money  shall  continue  in  force  and  effect  for  a  specific  period  of  time 
"unless  the  same  shall  be  suspended  or  modified  or  set  aside  by  the 
Commission. ' ' 

The  reasons  for  the  modification  of  an  order,  upon  application  of 
one  of  the  parties  to  a  proceeding,  should  be  equally  cogent  as  an  ap- 
plication for  a  rehearing.  The  most  frequent  modification  of  orders 
is  in  respect  to  the  time  when  they  shall  take  effect,  although  orders 
have  been  modified  to  the  extent  of  materially  changing  a  previous 
decision  of  the  Commission. 

The  power  of  the  Commission  is  not  exhausted  by  having  once 
passed  upon  a  question : 

INSTANCE. — In  Cattle  Raisers'  Assn.  v.  C.  B.  &  Q.  R.  Co.  (11  I.  C.  C.,  277) 
where  it  was  urged  that  the  Commission  having  once  passed  upon  a  question  its 
power  had  been  exhausted,  the  Commission,  after  reviewing  cases,  said  to  be 
authority  for  the  contention  that  boards  of  audit,  supervisors,  commissioners  for 
the  assessment  of  damages,  and  the  like,  having  once  acted  upon  a  given  matter 
and  published  their  decision  according  to  the  statute  creating  them,  they  could 
not  reconsider  that  action  (and  particularly  Union  Terminal  R.  Co.  v.  Board  of 
R.  Commissioners,  54  Kan.,  352),  said: 

"The  statute  provides  that  this  Commission  may  make  rules  for  the  conduct 
of  its  business,  and  the  court  will  hardly  presume  to  dictate  as  to  those  rules, 
so  long  as  the  rights  of  all  parties  are  protected.  In  the  matter  before  us  every 
reason  of  convenience  requires  that  the  case  should  be  reopened.  A  great  mass 
of  testimony  has  been  taken,  the  questions  at  issue  have  been  elaborately  argued, 
voluminous  facts  have  been  found — all  of  which  must  be  done  over  if  a  new  com- 

TRe  petition  Produce  Ex.  (2  I.  C.  C.,  588).  Compare  Section  136  for  the  doc- 
trine  of  stare  decisis. 

•Re  Allowance  to  Elevators  (13  I.  C.  C.,  498). 

•Rice  R.  &  W.  v.  W.  N.  Y.  &  P.  R.  Co.  (3  I.  C.  C.,  87). 

"Randolph  L.  Co.  v.  S.  A.  L.  R.  Co.  (14  I.  C.  C.,  338)  where  rehearing  on  the 
application  of  a  defendant  was  denied;  Hussey  v.  C.  R.  I.  &  P.  R.  Co.  (14  L  C. 
C.,  215),  where  motion  for  rehearing  made  by  a  complainant  after  order  dis- 
missing complaint  was  denied. 


PROCEEDINGS  AFTER  ORDER  185 

plaint  is  filed.  We  are  unable  to  perceive  how  the  rights  or  interests  of  these 
carriers  can  be  in  the  slightest  degree  prejudiced  by  reopening  this  case,  instead 
of  beginning  a  new  one.  In  several  instances,  where  the  suit  to  enforce  an  order 
has  been  dismissed,  the  Supreme  Court  of  the  United  States  has  expressly  said 
that  the  Commission  might  proceed  upon  the  record  already  before  it,  either  with 
or  without  additional  testimony,  thereby  recognizing  the  propriety  of  such  a 
method  of  procedure.  L.  &  N.  E.  Co.  v.  Behlmer  (175  U.  S.  648),  I.  C.  C.  v. 
Clyde  S.  S.  Co.  (181  U.  S.,  29),  E.  T.  V.  &  G.  E.  Co.  v.  I.  C.  C.  (181  U.  S.,  1). 

The  pendency  of  a  suit  involving  similar  issues  before  a  court  is 
not  sufficient  to  warrant  a  modification  of  an  order,  but  upon  deci- 
sion by  the  court  leave  will  be  granted  to  either  party  to  apply  for  a 
modification  of  the  order,  and  if  necessary  the  order  will  be  modified 
to  meet  the  judgment  of  the  court.11 

Sec.  154.  Proceedings  after  order  granting  relief. — 

ORDERS  AWARDING  REPARATION 

If  the  order  of  the  Commission  awards  reparation  and  the  carrier 
does  not  satisfy  the  order  within  the  time  mentioned  therein  the 
original  complainant,  or  any  person  for  whose  benefit  the  order  was 
made,  is  authorized  under  section  16  to  file  in  the  circuit  court  of  the 
United  States  for  the  district  in  which  he  resides,  or  in  which  is  lo- 
cated the  principal  operating  office  of  the  carrier,  or  through  which 
the  road  of  the  carrier  runs,  a  petition  setting  forth  briefly  the 
causes  for  which  he  claims  damages  and  the  order  of  the  Commission 
in  the  premises. 

ORDERS  OTHER  THAN  FOR  THE  PAYMENT  OF  MONEY. 

Orders  other  than  for  the  payment  of  money  made  under  the  pro- 
visions of  section  16  are  enforceable  by  application  made,  either  by 
the  Commission  or  by  any  party  injured  by  the  failure  to  obey  the 
order,  to  the  circuit  court  in  the  district  where  such  carrier  has  its 
principal  operating  office  or  in  which  the  violation  or  disobedience  of 
such  order  shall  happen.  This  was  formerly  the  only  procedure  where 
a  carrier  failed  or  neglected  to  obey  an  order. 

By  the  act  of  June  29,  1906  (sec.  16)  the  carrier  may  institute  a 
suit  in  the  circuit  court  to  enjoin,  set  aside,  annul  or  suspend  an 
order  or  requirement  of  the  Commission  in  the  district  where  the  car- 
rier against  whom  the  order  or  requirement  was  made  has  its  prin- 
cipal operating  office;  such  suits  may  be  brought  at  any  time  after 
the  order  is  promulgated.12 

"Keith  v.  K.  C.  E.  Co.  (1  I.  C.  C.,  189),  see  also  Cattle  Eaisers'  Assn.  v.  Ft. 
W.  &  D.  C.  E.  Co.  (7  I.  C.  C.,  513). 

"As  failure  or  refusal  to  obey  an  order  of  the  Commission,  other  than  for  the 
payment  of  money,  subjects  the  offending  carrier  to  the  penalties  of  the  act, 
namely,  suits  to  enjoin,  set  aside  or  annul  an  order  or  requirement  of  the  Com- 
mission, are  the  usual  method  of  staying  the  operation  of  the  order;  the  prac- 


186  PROCEEDINGS  AFTER  ORDER 

Sec.  155.  Proceedings  after  order  dismissing  the  petition. — As  has 
been  seen,18  orders  dismissing  the  petition  may  be  (a)  dismissing  the 
petition,  (6)  dismissing  the  petition  without  prejudice,  of  which  there 
are  two  kinds — i.  e.,  "dismissed  without  prejudice  to  the  rights  of 
complainant,  or  any  other  person  to  file  a  complaint  alleging,"  sub- 
stantially the  same  cause  of  action  if  the  alleged  unreasonable  rate 
or  practice  shall  be  of  consequence,1*  and  "that  the  complaint  in  this 
hearing  be,  and  is  hereby  dismissed  without  prejudice. ' ' 

The  statute  points  out  no  way  by  which  the  defeated  complainant 
may  have  a  review  or  appeal  of  his  case  other  than  by  a  rehearing. 
If  this  be  denied  he  is,  as  far  as  the  statute  is  concerned,  remediless. 
If  the  petition  be  dismissed  without  prejudice,  and  should  the  circum- 
stances warrant,  he  might  file  another  petition ;  or,  if  the  effect  of  an 
order  dismissing  without  prejudice  is  the  usual  effect  of  such  orders 
or  decrees,1'  and  the  right  be  predicated  upon  section  8  of  the  act, 
the  complainant  would  doubtless  be  entitled  to  proceed  in  the  courts 
as  provided  in  section  9  of  the  act. 

However  seriously  aggrieved  the  complainant  may  be  whose  pe- 
tition has  been  finally  dismissed,  the  statute  gives  him  no  further 
remedy.  He  may  consider  errors  both  of  law  and  fact  to  be  serious. 
It  may  be  that  the  petition  has  been  dismissed  for  the  want  of  juris- 
diction, or  he  may  desire  to  raise  a  constitutional  question,  or  he  may 
conceive  that  the  errors  in  admitting  and  rejecting  evidence  are  such 
that  but  for  the  rulings  of  the  Commission  he  would  be  entitled  to  re- 
lief. This  want  of  mutuality  in  providing  for  subsequent  proceedings 
leads  to  speculation  upon  the  constitutionality  of  the  act.  It  has 
been  suggested  that  the  complainant  whose  petition  has  been  dis- 
missed may  have  a  remedy  in  equity  by  filing  a  bill  in  the  nature  of  a 
bill  to  review  an  erroneous  decree." 


tiee  is  to  file  a  bill  before  the  date  on  which  the  order  becomes  effective  and 
give  notice  of  hearing  of  an  application  for  an  injunction.  For  list  of  cases 
filed  to  set  aside  the  orders  of  the  Commission  see  sec.  165,  post. 

13  Sec.  35,  ante. 

"Harrell  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.,  28). 

15  Johnston-Larimer  D.  G.  Co.,  v.  W.  E.  Co.  (12  I.  C.  C.,  52).  A  complaint 
may  be  dismissed  "without  prejudice  to  the  defendant's  right  to  apply  for 
relief  under  the  fourth  section  in  a  case  justifying  such  action"  (Behlmer  v.  M. 
&C.  E.  Co.,  6  I.  C.  C.,  257). 

18  The  right  to  proceed  after  dismissal  without  prejudice  has  not  been  definite- 
ly determined.  In  equity  practice  a  decree  dismissing  a  bill  in  a  former  suit  is 
an  adjudication  of  the  merits  of  the  controversy  and  constitutes  a  bar  to  any 
further  litigation  of  the  same  subject  between  the  same  parties;  if  there  be 
words  of  qualification,  such  as  "without  predjudice"  there  is  indicated  the  right 
or  privilege  to  take  further  legal  proceedings  on  the  subject  (Durant  v.  Essex 
Co.,  74  U.  S.,  107;  Co.  of  Mobile  v.  Kimball,  102  IT.  S.,  705).  In  the  last  case 
it  was  said  that  a  bill  dismissed  without  prejudice  is  "a  condition  which  pre- 
vented the  adjudication  from  operating  as  a  bar  to  the  same  claim,  if  the  com- 
plainants could  in  another  suit  obviate  the  defects  of  the  existing  bill." 

"While  this  suggestion  has  been  made  the  author  does  not  concede  that  such 
a  right  exists. 


PROCEEDINGS  AFTER  ORDER  187 

It  is  suggested  that  such  an  one  may  have  a  right  to  review  the  pro- 
ceedings of  the  Commission  by  certiorari  in  the  Supreme  Court  of 
the  District  of  Columbia.18 

18  As  the  Interstate  Commerce  Commission  is  an  administrative  board,  exercis- 
ing quasi  judicial  functions  (sec.  23),  it  is  in  its  nature  an  inferior  court;  the 
Supreme  Court  of  the  District  of  Columbia  is  a  court  of  the  United  States  (sec. 
61,  Code  of  the  District  of  Columbia),  and  has  the  power  to  exercise  all  the 
jurisdiction  of  a  common  law  court,  and,  in  addition,  the  power  conferred  by 
acts  of  Congress,  and  is  authorized  to  issue  writs  known  to  the  common  law 
and  equity  practice. 

The  writ  of  certiorari  has  been  used  in  numerous  instances  to  bring  before 
this  court  the  records  of  municipal  (District  of  Columbia)  and  United  States 
officers  whose  functions  are  judicial,  or  quasi  judicial.  It  has  been  invoked  for 
the  cancellation  of  tax  assessments,  for  the  review  of  the  proceedings  before  a 
police  trial  board,  to  review  the  proceedings  of  the  board  of  medical  examiners 
of  the  United  States  Army,  proceedings  of  a  board  of  health  which  had  con- 
demned a  soap  factory  as  a  nuisance  and  similar  purposes. 

The  leading  reported  cases  are:  McPherson  v.  Gallagan  (1  H.  &  H.,  394), 
Blagden  v.  Broadrup  (2  H.  &  H.,  278),  Bates  v.  D.  C.  (1  MacA.,  423),  Washing- 
ton Market  Co.  v.  Summy  (3  MacA.,  59),  Henry  Hoiles  v.  U.  S.  (3  MacA.,  370), 
Maxwell  v.  Creswell  (3  MacA.,  374),  D.  C.  v.  Washington  Gas-Light  Co.  (3 
Mackey,  343),  Wood  v.  D.  C.  (6  Mackey,  142),  Barber  v.  Harris  (6  Mackey, 
586),  Great  Fallls  Ice  Company  v.  D.  C.  (19  D.  C.,  327),  D.  C.  v.  Burgdorf 
(6  App.  D.  C.,  465),  Hendley  v.  Clark  (8  App.  D.  C.,  165),  D.  C.  v.  Libby  (9 
App.  D.  C.,  321),  Bradshaw  v.  Earnshaw  (11  App.  D.  C.,  495),  U.  S.  v.  Mills 
(8  App.  D.  C.,  500),  Bond  v.  Hardware  Co.  (15  App.  D.  C.,  72),  Anderson  v. 
Morton  (23  App.  D.  C.,  445),  Chamberlain  v.  Edwards  (18  App.  D.  C.,  332), 
Bradford  v.  Brown  (22  App.  D.  C.,  445),  Brown  v.  Slater  (23  App.  D.  C.,  51), 
Sullivan  v.  D.  C.  (19  App.  D.  C.,  210),  Kelly  v.  Moore  (22  App.  D.  C.,  1),  Pad- 
gett v.  D.  C.  (17  App.  D.  C.,  255),  Williams  v.  Satterlee  (20  App.  D.  C.,  393), 
Capital  Traction  Co.  v.  Hoff  (174  U.  S.,  1). 

The  leading  case  in  Maryland  (from  which  the  Supreme  Court  of  the  District 
of  Columbia  derived  its  early  jurisdiction  which  it  retains)  is  Williamson  v.  Car- 
nan  (1  G.  &  J.,  184). 

The  following  principles  were  there  adjudged  and  settled  by  the  Baltimore 
County  Court: 

' '  1.  That  every  inferior  jurisdiction,  whether  created  by  public  or  private  law, 
is  subject  to  have  its  proceedings  inspected  either  by  appeal  or  by  certiorari  and 
mandamus  where  such  jurisdiction  acts  judicially  (1  Salk.,  146;  1  Ld.  Raym., 
580).  They  will  be  coerced  to  perform  their  duties,  and  restrained  and  con- 
fined within  their  proper  limits  as  prescribed  by  law. 

"2.  That  where  these  jurisdictions  act  in  a  summary  manner,  or  in  a  new 
course  different  from  the  common  law,  a  certiorari  is  the  peculiar  and  appro- 
priate remedy;  as  in  such  a  case  a  writ  of  error  will  not  lie  (Greenvelt  v.  Bur- 
rell,  1  Salk.,  263;  Com.  Rep.,  76;  Israel  v.  Allen,  decided  in  Baltimore  County 
Court). 

"3.  That  a  certiorari  does  not  go  to  try  the  merits  of  the  question,  but  to  see 
whether  the  limited  jurisdictions  have  exceeded  their  bounds  (2  Burr,  1042). 

"4.  That  certiorari  will  lie,  after  judgment,  where  the  jurisdiction  proceeds 
in  a  summary  manner,  and  in  a  course  different  from  the  common  law  (1  Salk., 
263;  Com.  Dig.,  76;  2  Burr,  1042). 

"5.  That  a  certiorari  may  issue  even  after  judgment  executed,  where  a  lim- 
ited authority  has  been  transcended  by  inferior  jurisdictions,  in  cases  where  no 
writ  of  error  lies,  for  the  purpose  of  questioning  their  proceedings." 


PART  II 
Procedure  Before  the  Courts 


CHAPTER  IX 
JURISDICTION  OF  COURTS  IN  INTERSTATE  COMMERCE 


Sec.  156.  Jurisdiction  of  Federal  courts. — It  is  not  within  the  scope 
of  this  work  to  refer  to  the  general  jurisdiction  of  Federal  courts, 
at  law  or  in  equity,  but  the  reader  is  referred  to  the  general  works  on 
the  subject.1  The  jurisdiction  to  hear  and  determine  matters  in- 
volving interstate  commerce  will  be  considered,  whether  that  juris- 
diction be  conferred  by  the  judiciary  acts 2  or  by  the  acts  having  for 
their  purpose  the  regulation  of  commerce.  Whatever  statute  may 
confer  jurisdiction  on  the  particular  Federal  court,  it  needs  to  be  re- 
membered that  its  jurisdiction  and  its  powers  are  derived  from  the 
Constitution  and  the  acts  of  the  Congress,3  and  that  they  exercise  no 
common-law  authority,  although  it  is  proper  for  them  in  interpreting 
and  construing  laws  to  be  controlled  by  the  rules  of  the  common  law 
in  that  behalf. 

Sec.  157.  Equitable  jurisdiction  of  Federal  courts  to  protect  inter- 
state commerce. — Independent  of  the  act  to  regulate  commerce  the 
Federal  courts  have  jurisdiction  sitting  in  equity  to  protect  interstate 
commerce,  whether  upon  application  of  the  United  States  or  upon  the 
application  of  carriers  engaged  therein.  This  jurisdiction  is  con- 
ferred by  the  several  judiciary  acts  and  extends  to  rights  affecting 
interstate  commerce  not  covered  by  the  act  to  regulate  commerce;  it 
is  the  broad,  general  chancery  jurisdiction  of  Federal  courts. 

1  Brown  on  Jurisdiction;  Carter  on  Jurisdiction  of  Federal  Courts;   Curtis  on 
Jurisdiction  and  Jurisprudence;  Hughes  on  Federal  Jurisdiction  and  Procedure; 
Works  on  Courts  and  their  jurisdiction. 

2  The  general  judiciary  acts  are  sections  629-657  E.  S. ;  Act  of  March  1,  1875 
(18  Stat.  L.,  335)  ;  Act  of  March  3,  1887  (24  Stat.  L.,  552)  ;  Act  of  August  13, 
1888    (25  Stat.  L.,  433).     The  statutes  specifically  giving  jurisdiction  in  inter- 
state commerce  matters  embrace  all  the  so-called  interstate  commerce  acts — i.  e., 
Act  of  February  4,  1887  (24  Stat.  L.,  379)  ;  Act  of  March  2,  1889  (25  Stat.  L., 
855),  Act  of  February  19,  3903   (32  Stat.  L.,  847),  Act  of  June  29,  1906   (34 
Stat.  L.,  584).     For  acts  giving  jurisdiction  in  other  special  cases,  see  Dewhurst 
on  Eules  of  Practice  in  the  United  States  Courts,  p.  293. 

8 In  Eice  v.  M.  &  N.  E.  Co.  (1  Black,  358)  the  Supreme  Court  said:  "Juris- 
diction, in  common  law  cases,  can  never  be  exercised  in  the  Federal  courts,  un- 
less conferred  by  an  act  of  Congress,  because  such  courts  are  courts  of  special 
jurisdiction,  and  derive  all  their  powers  from  the  Constitution,  and  the  laws  of 
Congress  passed  in  pursuance  thereof.  Eules  of  decision,  also,  in  cases  within  the 
thirty-fourth  section  of  the  judiciary  act,  are  derived  from  the  laws  of  the 
States;  but  in  the  construction  of  the  laws  of  Congress,  the  rules  of  the  common 
law  furnish  the  true  guide," 


192  JURISDICTION  OP  COURTS 

The  Federal  courts  have  jurisdiction  to  protect  commerce  at  the 
suit  of  the  United  States: 

INSTANCE. — In  re  Debs  (158  TL  S.,  582),  the  Supreme  Court  said:  "Every 
Government,  entrusted  by  the  very  terms  of  its  being  with  powers  and  duties 
to  be  exercised  and  discharged  for  the  general  welfare,  has  a  right  to  apply 
to  its  own  courts  for  any  proper  assistance  in  the  exercise  of  the  one  and  the 
discharge  of  the  other,  and  it  is  no  sufficient  answer  to  its  appeal  to  one  of  those 
courts  that  it  has  no  pecuniary  interest  in  the  matter.  The  obligations  which  it 
is  under  to  promote  the  interest  of  all  and  to  prevent  the  wrong  doing  of  one 
resulting  in  injury  to  the  general  welfare  is  often  of  itself  sufficient  to  give  it 
a  standing  in  court." 

But  not  to  enjoin  at  the  request  of  the  Interstate  Commerce  Com- 
mission discriminations  prohibited  by  the  act  to  regulate  commerce,  as 
it  existed  prior  to  the  Elkins  law: 

INSTANCE.— In  M.  P.  E.  Co.  v.  TJ.  S.  (189  U.  S.,  283),  where  a  bill  had  been 
filed  in  the  circuit  court  at  the  request  of  the  Interstate  Commerce  Commission 
in  the  name  of  the  United  States,  and  the  authority  to  file  the  same  had  been 
sustained  by  the  circuit  court  and  the  Circuit  Court  of  Appeals,  the  case  was 
reversed  and  remanded  by  the  Supreme  Court,  saying:  "Bearing  in  mind  that, 
prior  to  the  request  of  the  Commission  upon  which  the  suit  was  brought,  no  hear- 
ing was  had  before  the  Commission  concerning  the  matters  of  fact  complained 
of,  and  therefore  no  finding  of  fact  whatever  was  made  by  the  Commission,  and 
it  had  issued  no  order  to  the  carrier  to  desist  from  any  violation  of  the  law 
found  to  exist,  after  opportunity  afforded  to  it  to  defend,  the  question  for  de- 
cision is  whether,  under  such  circumstances,  the  law  officers  of  the  United  States 
at  the  request  of  the  Commission  were  authorized  to  institute  this  suit. 

"Testing  this  question  by  the  law  which  was  in  force  at  the  time  when  the 
suit  was  begun  and  when  it  was  decided  below,  we  are  of  the  opinion  that  the 
authority  to  bring  the  suit  did  not  exist." 

Shortly  prior  to  this  decision  the  Elkins  law  was  passed  and  while 
section  3  of  that  act  gives  to  the  Commission  authority  to  apply  to 
the  courts  for  an  injunction  against  discriminations  and  transporting 
goods  at  less  than  the  published  rates,  it  speaks  in  the  present,  as  "is 
committing,"  and  that  the  court  may  direct  a  "discontinuance,"  it 
is  doubtful  if  the  circuit  courts  have  jurisdiction,  or  the  Commission 
authority,  to  file  a  bill  to  prevent  a  discrimination  not  in  existence 
at  the  time  of  the  filing  of  the  bill  or  to  prevent  threatened  trans- 
portation of  goods  at  less  than  the  published  rates. 

The  Federal  courts  have  jurisdiction  to  protect  commerce  at  the 
suit  of  carriers  of  interstate  commerce : 

INSTANCE. — In  T.  A.  A.  &  N.  M.  E.  Co.  v.  P.  Co.  (54  Fed.,  730)  where  a  bill 
was  filed  to  enjoin  the  defendants  and  their  employees  from  refusing  to  receive 
and  transport  interstate  freight  coming  to  them  over  the  complainant's  road, 
the  complainant  relying  upon  the  right  granted  by  section  3  of  the  interstate 
commerce  act,  and  the  jurisdiction  of  the  court  was  attacked,  the  court  said: 
"The  jurisdiction  of  this  court  to  hear  and  decide  the  case  made  by  the  bill 
can  not  be  maintained  on  the  ground  of  the  diverse  citizenship  of  the  parties, 
for  the  complainant,  and  at  least  one  of  the  defendants,  are  citizens  of  the  same 


JURISDICTION  OF  COURTS  193 

State.  If  it  exists,  it  must  arise  from  the  subject-matter  of  the  suit.  The  bill 
invokes  the  chancery  powers  of  this  court  to  protect  the  complainant  in  rights 
which  it  claims  under  the  act  of  the  Congress  passed  February  4,  1887  (24 
Stat.  L.,  379),  known  as  the  interstate  commerce  act,  and  an  act  amending  it, 
passed  March  2,  1889  (25  Stat.  L.,  855).  These  acts  were  passed  by  the 
Congress  in  the  exercise  of  the  power  conferred  on  it  by  the  Federal  Consti- 
tution (art.  1,  sec.  8,  par.  3),  'to  regulate  commerce  with  foreign  nations,  and 
among  the  several  states  and  with  the  Indian  tribes.'  Counsel  for  defendant 
Arthur  contend  that  the  interstate  commerce  law  and  its  amendments  are  only 
declaratory  of  the  common  law,  which  gave  the  same  rights  to  complainant,  and 
that,  therefore,  this  is  not  a  case  of  Federal  jurisdiction.  The  original  jurisdic- 
tion of  this  court  extends,  by  act  of  the  Congress  passed  August  13,  1888 
(25  Stat.  L.,  433),  to  'all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
where  the  matter  in  dispute  exceeds,  exclusive  of  interests  and  costs,  the  sum 
or  value  of  $2,000  and  arising  under  the  Constitution  or  laws  of  the  United 
States.'  The  bill  makes  the  necessary  averment  as  to  the  amount  in  dispute. 
It  is  immaterial  what  rights  the  complainant  would  have  had  before  the  passage 
of  the  interstate  commerce  law.  It  is  sufficient  that  the  Congress,  in  the  con- 
stitutional exercise  of  power,  has  given  the  positive  sanction  of  Federal  law  to 
the  rights  secured  in  the  statute,  and  any  case  involving  the  enforcement  of  those 
rights  is  a  case  arising  under  the  laws  of  the  United  States."  (See  also  T.  A.  A. 
&  N.  M.  K.  Co.  v.  P.  Co.,  54  Fed.,  746;  re  Lennon,  166  U.  S.,  548.) 

Sec.  158.  Jurisdiction  of  courts  in  interstate  commerce  cases. — In 
civil  cases  the  jurisdiction  of  State  and  Federal  courts  is  concurrent 
asi  to  subject-matter  if  the  suit  be  one  affecting  interstate  com- 
merce and  brought  to  enforce  rights  existing  but  not  granted  by  the 
acts  to  regulate  commerce;  in  order  that  the  Federal  jurisdiction 
shall  attach  in  such  cases  the  usual  requirements  concerning  diverse 
citizenship  and  amount  in  controversy  must  be  present. 

In  civil  suits  brought  to  enforce  rights  granted  by  the  interstate 
commerce  acts  the  jurisdiction  of  the  Federal  courts  is  exclusive  of  the 
State  courts  but  if  damages  be  sought  under  section  9  of  the  act, 
the  jurisdiction  is  concurrent  in  this  behalf  with  that  of  the  Com- 
mission. In  such  suits  in  the  Federal  courts  the  jurisdiction  is  not 
dependent  upon  diverse  citizenship  but  is  a  proceeding  involving  a 
Federal  question. 

The  criminal  jurisdiction  under  the  act,  and  there  is  no  criminal 
jurisdiction  in  interstate  commerce  cases  other  than  that  conferred  by 
the  act,  is  exclusive  in  the  Federal  courts. 

There  is  no  more  important  question  to  be  determined,  when  the 
subject-matter  of  a  suit  is  interstate  commerce,  than  the  jurisdiction 
thereof  of  the  several  courts ;  upon  the  determination  of  this  question 
rests  the  selection  of  the  forum.  Should  it  appear  that  two  or  more 
courts  have  concurrent  jurisdiction,  the  reasons  which  weigh  heaviest 
for  the  selection  of  a  particular  court,  such  as  the  statute  of  limita- 
tions, power  of  the  court,  etc.,  must  receive  consideration. 

It  is  not  within  the  scope  of  this  work  to  consider  the  jurisdiction  of 


194  JURISDICTION  OF  COURTS 

courts  generally  but  only  the  jurisdiction  of  courts  when  the  sub- 
ject-matter is  interstate  commerce;  thus  we  are  limited  to  a  consider- 
ation of  the  parties  litigant  and  the  character  of  relief  asked.* 

To  determine  the  forum  having  jurisdiction  in  a  particular  case, 
where  the  subject-matter  of  the  suit  is  interstate  commerce,  it  fol- 
lows from  a  careful  consideration  of  all  the  cases,  that  one  must  de- 
termine the  origin  of  the  right  of  the  plaintiff  or  complainant.  The 
rights  of  users  of  transportation  and  carriers  engaged  therein,  were, 
prior  to  the  passage  of  the  interstate  commerce  act,  such  rights  as 
each  of  the  parties  had  at  common  law.5 

At  the  time  of  the  passage  of  the  interstate  commerce  act  each  of 
the  parties  to  an  interstate  shipment  possessed  certain  rights,  duties 
and  liabilities,  which  were  enforceable  at  common  law.  So,  also,  each 
of  the  parties  to  an  intrastate  shipment  possessed  certain  rights, 
duties  and  liabilities  enforceable  as  at  common  law.  As  to  the  lat- 
ter, there  is  no  doubt  that  the  State  courts  have  jurisdiction  to  hear 
and  determine  cases  arising  thereunder,  and  such  jurisdiction  is  ex- 
clusive except  when  under  the  acts  of  the  Congress  relating  to  the 
jurisdiction  of  Federal  courts  they  have  jurisdiction  by  reason  of 
diverse  citizenship,  etc.  State  railway  commissions,  however,  often 
exercise  jurisdiction  respecting  intrastate  transportation. 

What  precisely  were  the  rights  of  users  of  transportation  facilities 
and  those  transporting  commodities  in  interstate  commerce  at  common 
law  is  a  matter  of  some  doubt,  particularly  respecting  discrimination 
between  persons.  The  act  to  regulate  commerce,  as  to  the  rights 
which  it  conferred,  was  partly  in  affirmance  of  and  partly  in  deroga- 
tion of  rights  existing  at  common  law ;  but  there  remain  certain  rights 
at  common  law,  which  are  neither  changed  nor  reiterated  by  the  act. 

A  careful  consideration  of  the  present  law  and  the  decisions '  there- 
under leads  to  the  conclusion  that  if  a  plaintiff  or  a  complainant  seeks 

* ' '  Jurisdiction  is  the  power  and  authority  of  a  tribunal  to  hear  and  determine 
the  matter  in  dispute  between  parties,  of  the  character  and  residence  of  the 
disputants,  and  to  afford  the  relief  asked.  Jurisdiction  has  relation  to  (1)  the 
subject-matter  of  the  litigation,  (2)  the  parties  litigant,  and  (3)  the  particular 
process — i.  e.,  character  of  relief  asked. ' '  (Andrew  Am.  Law,  p.  1167  citing 
Cooper  v.  Eeynolds,  10  Wall.,  308.) 

•In  I.  C.  C.  v.  B.  &  O.  E.  Co.  (145  U.  S.,  263)  the  Supreme  Court  said:  "Prior 
to  the  enactment  of  the  act  of  February  4,  1887  (24  Stat.  L.,  379),  to  regulate 
commerce,  commonly  known  as  the  Interstate  Commerce  Act,  railway  traffic  in 
this  country  was  regulated  by  the  principles  of  the  common  law  applicable  to 
common  carriers."  There  is  still  in  dispute  whether  or  not  there  is  any  "com- 
mon law  of  the  United  States"  (see  U.  S.  v.  Hudson,  7  Cranch,  32)  ;  Wheaton  v. 
Peters,  8  Pet.,  591;  Smith  v.  Alabama,  124  U.  S.,  465,  and  Western  Union 
Tel.  Co.  v.  Call  Pub.  Co.,  181  U.  S.,  92.) 

•In  re  Lennon  (166  U.  S.,  548),  T.  A.  A.  &  N.  M.  E.  Co.  v.  P.  Co.  (54  Fed., 
730),  Lowry  v.  C.  B.  &  Q.  E.  Co.  (46  Fed.,  83),  L.  E.  &  M.  E.  Co.  v.  E.  T.  V.  & 
G.  E.  Co.  (47  Fed.,  771),  Tift  v.  S.  E.  Co.  (123  Fed.,  792),  Connor  v.  V.  S. 
&  P.  E.  Co.  (36  Fed.,  273).  That  the  State  courts  have  no  jurisdiction  under  the 
act  to  regulate  commerce  see  Swift  v.  P.  &  E.  E.  Co.  (58  Fed.,  858),  Edmunds  v. 
L  C.  E.  Co.  (80  Fed.,  79),  Van  Patten  v.  C.  M.  &  St.  P.  E.  Co.  (74  Fed.,  981). 


JURISDICTION  OF  COURTS  195 

to  enforce  a  right,  where  the  subject-matter  is  interstate  commerce, 
and  where  the  right  is  one  which  has  not  been  either  reiterated,  mod- 
ified, or  denied  by  the  act  to  regulate  commerce,  the  State  and  Fed- 
eral courts  have  concurrent  jurisdiction  of  the  case,  subject  of  course 
to  the  jurisdiction  of  the  parties.  If,  however,  one  desires  to  enforce 
a  right  found  within  the  act  to  regulate  commerce,  jurisdiction  to 
hear  and  determine  the  matter  is  exclusive  in  the  Federal  courts,  ex- 
cept in  a  proceeding  brought  under  sections  8  and  9  for  damages, 
in  which  event  the  Interstate  Commerce  Commission  has  concurrent 
jurisdiction. 

While  the  authority  of  the  courts  to  fix  rates  for  transportation 
has  been  questioned,7  yet  they  have  considered  the  reasonableness  of 
rates  in  order  to  determine  whether  or  not  the  constitutional  guaran- 
ties have  been  complied  with;  and  such  has  been  the  practice  of 
courts  both  in  the  matter  of  commission -made  rates  as  well  as  where 
the  rates  have  been  prescribed  directly  by  the  legislature.8 

T  See  Judson  on  Interstate  Commerce,  sec.  124  and  cases  there  cited;  but  see 
Scofield  v.  Railway  (43  Ohio  St.,  571),  C.  S.  E.  Co.  v.  International  B.  Co.  (7 
Fed.,  653,  and  8  Fed.,  190).  "It  is  argued,"  said  Wallace,  J.,  in  C.  S.  B.  Co.  v. 
International  B.  Co.  (7  Fed.,  653),  "that  the  act  attempts  to  confer  upon  the 
court  the  power  to  fix  the  rate  of  tolls  which  the  International  Bridge  Company 
may  charge,  and  that  this  is  a  legislative  and  not  a  judicial  function.  If  Congress 
had  fixed  the  rate  of  tolls  as  it  had  the  right  to  prescribe  the  conditions  upon 
which  the  franchise  might  be  enjoyed,  no  other  authority  could  have  intervened 
to  change  these  conditions.  But  suppose  the  act  had,  in  terms,  provided  that 
the  bridge  company  might  charge  reasonable  tolls,  would  not  this  have  been  a 
complete  exercise  of  the  legislative  power,  and  would  it  not  have  remained  for 
the  judicial  department  to  decide,  when  controversy  should  arise,  what  were  or 
were  not  reasonable  tolls?  And,  if  the  act  had  provided  for  such  a  determina- 
tion by  a  judicial  tribunal,  would  this  have  been  unconstitutional?  It  seems  to  me 
clearly  not.  It  is  no  less  the  exercise  of  judicial  functions  to  prescribe  a  rule  of 
conduct  or  protect  the  existence  of  a  right  during  a  future  period,  than  it  is  to 
determine  whether  the  right  has  been  invaded  in  the  past.  It  is  one  of  the  com- 
mon offices  of  a  court  of  equity  to  do  this." 

Whatever  may  be  the  power  of  courts  respecting  the  fixing  of  rates  for  the  fu- 
ture, they  have,  nevertheless,  through  injunction,  been  able  to  prevent  discrimina- 
tions and  grant  similar  relief.  (Tift  v.  S.  E.  Co.,  123  Fed.,  789,  citing  Menacho 
v.  Ward,  27  Fed.,  529;  Sou.  Exp.  Co.  v.  M.  &  L.  E.  Co.,  8  Fed.,  799,  affirmed,  10 
Fed.,  210;  Coe  v.  L.  &  N.  E.  Co.,  3  Fed.,  755;  1  High  on  Injunctions,  sees.  616 
and  621;  Eogers  Loc.  Works  v.  E.  E.  Co.,  20  N.  J.  Eq.,  379;  Oelrichs  v.  Spain, 
82  TJ.  S.,  211;  and  C.  M.  &  St.  P.  E.  Co.  v.  Minnesota,  134  U.  S.,  418.) 

The  injunctive  power  of  courts  of  equity  has  been  used  to  compel  a  common 
carrier  to  make  personal  delivery  of  goods  to  a  consignee,  and  restrain  it  from 
imposing  upon  certain  warehousemen  greater  charges  than  those  imposed  upon 
others  (Vincent  v.  C.  &  A.  E.  Co.,  49  111.,  33)  ;  to  compel  taking  of  freight  and 
restrain  excessive  tolls  (American  Coal  Co.  v.  G.  C.  Co.  and  C.  &  P.  E.  Co.,  46 
Md.,  15)  ;  to  compel  one  carrier  to  receive  and  transport  cars  from  a  connecting 
line  (C.,  B.  &  Q.  E.  Co.  v.  B.  C.  E.  &  N.  E.  Co.,  34  Fed.,  481);  commanding  a 
carrier  to  furnish  another  carrier  the  same  facilities  as  afforded  other  carriers 
(T.  A.  A.  &  N.  M.  E.  Co.  v.  P.  Co.,  54  Fed.,  746)  ;  to  compel  a  carrier  to  accept 
freight  or  passengers  from  another  company  (D.  &  N.  O.  E.  Co.  v.  A.  T.  &  S.  F. 
E.  Co.,  15  Fed.,  650,  reversed  in  110  U.  S.,  667,  on  the  ground  that  neither  the 
common  law  nor  the  State  statutes  provided  rights  essential  to  the  granting  of 
the  injunction)  ;  and  preventing  unjust  discriminations  by  carriers  between  ship- 
pers (Scofield  v.  Eailway,  43  Ohio  St.,  571).  See  generally,  High  on  Injunctions. 

•Courts  generally  predicate  the  question  of  reasonableness  and  unreasonable- 
ness of  rates  upon  the  cost  of  transportation;  not  infrequently  they  fall  into 


196  JURISDICTION  OF  COURTS 

Federal  courts  have  jurisdiction  to  entertain  a  bill  to  declare  a 
traffic  association  illegal  because  violative  of  the  pooling  section  of  the 
interstate  commerce  act.* 

Sec.  159.  Essentials  to  confer  jurisdiction  on  Federal  court:. — Not- 
withstanding the  jurisdiction  of  Federal  courts  under  the  interstate 
commerce  act  is  exclusive  of  the  State  courts  or  concurrent  v>  ith  the 
Commission,10  and  that  the  controversy  arising  under  the  statute  is  a 
controversy  arising  under  the  laws  of  the  United  States  and  diverse 
citizenship  is  not  necessary"  to  confer  jurisdiction,  yet  other  ele- 
ments necessary  to  give  jurisdiction,  such  as  proper  service  of  proc- 
ess, must  be  present,  and  the  venue  u  must  be  correctly  laid. 

The  Supreme  Court  in  New  Mexico  ex  rel.  v.  Baker  (196  U.  S.,  432) 
said  that  the  following  principle  is  applicable  to  all  courts: 

It  is  firmly  established  that  a  court  of  justice  can  not  acquire  jurisdiction  over 
the  person  of  a  defendant,  "except  by  actual  service  of  notice  within  the  juris- 
diction upon  him,  or  upon  some  one  authorized  to  accept  service  in  his  behalf,  or 
by  his  waiver,  by  general  appearance  or  otherwise,  of  the  want  of  due  service." 

Service  on  the  president  of  a  railroad  company  temporarily  within 
a  district  does  not  constitute  proper  service : 

INSTANCE. — In  New  Mexico  ex  rel.  v.  Baker  (196  U.  S.,  432),  action  had  been 
brought  in  a  territorial  court  against  a  carrier  subject  to  the  act  to  regulate 
commerce  to  recover  damages  for  alleged  violations  of  the  interstate  commerce 
act  and  the  Sherman  antitrust  act;  a  summons  was  issued  against  one  of  the 
carriers  and  the  return  of  the  marshal  stated  that  it  was  served  on  a  particular 
day  by  delivering  a  true  copy  thereof  with  a  copy  of  the  complaint  attached 
thereto  to  the  president  of  the  corporation.  It  appeared  that  the  carrier  was  in- 
corporated under  an  act  of  the  Congress,  and  that  it  was  the  owner  of  a  line  of 
railroad  within  the  territorial  jurisdiction  where  suit  was  instituted,  and  was  the 
owner  of  considerable  quantities  of  land  in  the  same  district.  The  presiding 
judge  quashed  the  return  of  the  summons  and  refused  to  resume  jurisdiction  of 
the  action  so  far  as  the  defendant  carrier  was  concerned  or  to  require  it  to 
answer  the  declaration  or  complaint  filed  by  the  petitioner.  A  petition  was 
filed  for  a  writ  of  mandamus  which  was  denied  by  the  Supreme  Court  of  the 
Territory  of  New  Mexico,  and  its  decision  was  affirmed  by  the  United  States 
Supreme  Court.  The  court  said: 

"We  are  of  opinion  that  the  service  of  summons  upon  Eipley,  as  president, 
while  he  was  passing  through  the  territory  on  a  railroad  train  was  insufficient 
as  a  personal  service  on  the  company  of  which  he  was  president.  It  is  true  that 
the  company  owned  lands  in  the  territory,  but  its  office,  at  which  the  meetings 
of  its  directors  was  held,  was  in  the  city  of  New  York,  while  the  office  of  its 

mathematical  errors ;  were  the  cost  accurately  determined,  it  is  doubted  if  it  would 
avail  much;  at  least,  it  should  not  be  the  sole  criterion  of  the  constitutionality 
of  commission-made  rates.  For  a  criticism  of  the  mathematics  used  in  ascertain- 
ing the  cost  of  transportation,  see  the  author's  article  in  Green  Bag  (Boston), 
March,  1907  (reprinted  in  the  Appendix  to  this  volume). 
•U.  S.  v.  Joint  Traffic  Association  (171  U.  S.,  505). 

10  See  section  31,  ante. 

11  In  re  Lennon  (166  U.  S.,  548). 
"  See  section  167,  post. 


JURISDICTION  OP  COURTS  197 

land  commissioner  was  at  Topeka,  Kansas,  and  the  office  of  its  president  was  at 
Chicago,  Illinois.  The  mere  ownership  of  lands  in  New  Mexico,  or  the  bringing 
of  suits  there  to  protect  its  lands  against  trespasses,  could  not  have  had  the 
effect  to  put  the  company  into  that  territory  for  the  purposes  of  a  personal  ac- 
tion against  it,  based  on  service  of  summons  upon  one  of  its  officers  while  passing 
through  the  territory  on  a  railroad  train.  *  *  *  " 

Sec.  160.  Powers  given  to  the  Federal  courts  by  the  interstate  com- 
merce acts. — The  powers  given  to  the  Federal  courts  are  both  civil 
and  criminal;  the  former  being  at  law  and  in  equity  and  the  latter 
according  to  the  customary  course  of  criminal  procedure. 

The  powers  at  law  include  jurisdiction  to  hear  and  determine  suits 
brought  for  damages  for  violation  of  the  statute,  for  forfeitures,  and 
to  issue  extraordinary  legal  writs  to  compel  obedience  to  the  re- 
quirements of  the  statute,  and  to  assist  the  Commission  by  compelling 
attendance  of  witnesses,  etc. 

The  equitable  jurisdiction  is  broadly  divisible  into  two  heads:  (a) 
to  enforce  an  order  of  the  Commission,  and  (&)  to  set  aside,  annul,  or 
suspend  an  order  or  requirement  of  the  Commission.  The  former 
was  the  only  remedy  prior  to  the  amendment  of  1906,13  for  the  orders 
of  the  Commission  were  not  then  considered  self -executing ;  the  pres- 
ent statute,  however,  makes  them  such  and  hence  the  chief  equitable 
jurisdiction  under  the  act  now  is  for  the  purpose  of  having  orders  of 
the  Commission  stayed  temporarily  until  a  decision  by  the  courts 
on  the  matters  involved,  and  permanently. 

The  specific  powers  given  by  the  act  to  the  courts  are : 

(A)  To  assist  the  Commission  in  the  performance  of  its  duties  and  functions: 
(1)    The  court  may  aid  the  Commission,  after  disobedience  to  a  subpoena, 

by  requiring  attendance  and  testimony  of  witnesses  and  the  protection 
of  books,  papers  and  documents  (sec.  12). 

(B)  To  consider  the  orders  of  the  Commission: 

(1)  At  a  suit  of  the  Commission,  or  of  any  party  injured,  upon  failure  or 
neglect  of  the  carrier  to  obey  any  order  of  the  Commission,  to  prosecute 
such  inquiries  and  make  such  investigations,  through  such  means  as 
the  court  shall  deem  needful  in  the  ascertainment  of  the  facts  at  issue 
or  which  may  arise  upon  the  hearing  of  the  petition ;  if  after  hearing  the 
court  determines  that  the  order  was  regularly  made  and  duly  served 
to  the  carriers  in  disobedience  of  the  same  the  court  shall  enforce  obe- 
dience to  the  order  by  a  writ  of  injunction  or  other  proper  process, 
mandatory  or  otherwise,  to  restrain  the  carrier,  its  officers,  agents  or 
representatives,  from  further  disobedience  of  the  order,  or  to  enjoin  upon 
the  carrier  or  its  agents  obedience  to  it.1*  Courts  are  given  in  such 

13  Act  of  June  29,  1906  (34  Stat.  L.,  584). 

14  The  constitutionality  of  this  provision  must  be  doubted,  for  if  invoked  and 
enforced  it  would  prevent  the  review  of  the   decision  of  the  Commission;    the 
language   of  the  provision  is  mandatory  on  the  courts,  if  it  appear  that   the 
order  was  regularly  made  and  duly  served — i.  e.,  that  the  order  was  duly  made 
at  a  regular  session  of  the  Commission  and  that  service  had  been  had  in  the 
usual  and  customary  manner. 


198  JURISDICTION  OP  COURTS 

cases  those  powers  ordinarily  exercised  by  courts  in  compelling  obedience 
to  the  writ  of  injunction  and  mandamus  (sec.  16). 

(2)  Where  an  order  has  been  made  for  the  payment  of  money  and  the  car- 
rier has  not  complied  with  the  order  within  the  time  limit  the  court  is 
authorized  at  the  suit  of  the  complainant  or  any  person  for  whose 
benefit  the  order  was  made  to  entertain  a  petition  setting  forth  the 
causes  for  which  the  complainant  claims  damages  and  the  order  of  the 
Commission  (sec.  16). 

(C)  Extraordinary  writs: 

(1)  Injunction.     Under  the  provision  of  section  16  the  courts  are  author- 
ized to  enforce  obedience  to  an  order  other  than  an  order  for  the  pay- 
ment of  money  by  a  writ  of  injunction  or  other  process  mandatory  or 
otherwise. 

(2)  At  the  suit  of  the  Commission  alleging  that  passengers  or  freight  traf- 
fic is  transported  between  given  points  at  less  than  the  published  rates 
on  file,  or  there  is  being  committed  any  discrimination  forbidden  by  law, 
on  being  satisfied  of  the  truth  of  the  allegations  of  the  petition,  to  en- 
force the  observance  of  the  published  tariffs  or   direct  and  require  a 
discontinuance  of  the  discrimination  by  proper  orders,  writs,  and  process; 
such  suits  may  be  instituted  by  the  Attorney-General  of  his  own  motion 
or  upon  the  request  of  the  Commission  (sec.  3,  Elkins'  law). 

(3)  Mandamus.     Under   section   23   the   circuit  and  district   courts   of   the 
United  States  may  upon  the  relation  of  any  person  alleging  such  vio- 
lations by  a  common  carrier  as  prevents  the  relator  from  having  inter- 
state traffic  moved  by  it  at  the  same  rates  as  are  charged,  or  upon 
terms  or  conditions  as  favorable  as  those  given  by  it  for  like  traffic 
under  similar  conditions  to  any  other  shipper,  to  issue  a  writ  or  writs  of 
mandamus  against  the  carrier  commanding  it  to  move  and  transport  the 
traffic,  or  to  furnish  cars  or  facilities  for  transportation  for  the  party 
applying  for  the  writ;  this  remedy  is  cumulative  and  is  not  to  exclude 
or  interfere  with  other  remedies  provided  for  by  the  act  (sec.  23). 

(4)  The  circuit  and  district  courts  may  upon  application  of  the  Attorney- 
General,  at  the  request  of  the  Commission,  alleging  the  failure  to  com- 
ply with  the  violation  of  any  of  the  provisions  of  the  act  to  issue  a  writ 
or  writs  of  mandamus,  commanding  the  carrier  to  comply  with  the  pro- 
visions of  the  act,  or  any  of  them  (sec.  20). 

(D)  Miscellaneous  powers: 

(1)  Under   the   provisions   of   section    8    the    court    may   tax    a    reasonable 
counsel  fee  as  costs  in  a  suit  where  one  seeking  damages  for  the  violation 
of  the  act  prevails. 

(2)  The  court,  or  a  judge  thereof,  may  direct  an  examiner  to  divulge  facts 
or  information  which  may  come  to  his  knowledge  during  the  course  of 
his  examination  of  the  accounts  of  a  carrier  (sec.  20). 

Sec.  161.  Jurisdiction  of  circuit  courts. — 

UNDER  REVISED  STATUTES 

The  jurisdiction  of  the  circuit  courts  of  the  United  States  is  provid- 
ed for  by  the  act  of  March  3,  1875,  as  amended  August  13,  1888."    As 

"  25  Stat.  L.,  434. 


JURISDICTION  OP  COURTS  199 

far  as  may  be  applicable  to  interstate  commerce  matters 1S  their  juris- 
diction is: 

SEC.  1.  That  the  circuit  courts  of  the  United  States  shall  have  original  cogni- 
zance, concurrent  with  the  courts  of  the  several  States,  of  all  suits  of  a  civil 
nature,  at  common  law  or  in  equity,  where  the  matter  in  dispute  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  two  thousand  dollars,  and  arising 
under  the  Constitution  or  laws  of  the  United  States,  or  treaties  made,  or  which 
shall  be  made,  under  their  authority,  or  in  which  controversy  the  United  States 
are  plaintiffs  or  petitioners,  or  in  which  there  shall  be  a  controversy  between 
citizens  of  different  States,  in  which  the  matter  in  dispute  exceeds,  exclusive  of 
interest  and  costs,  the  sum  or  value  aforesaid,17  *  *  *  and  shall  have  ex- 
clusive cognizance  of  all  crimes  and  offenses  cognizable  under  the  authority  of 
the  United  States,  except  as  otherwise  provided  by  law,  and  concurrent  juris- 
diction with  the  district  courts  of  the  crimes  and  offenses  cognizable  by  them. 

But  no  person  shall  be  arrested  in  one  district  for  trial  in  another  in  any  civil 
action  before  a  circuit  or  district  court; 

And  no  civil  suit  shall  be  brought  before  either  of  said  courts  against  any 
person  by  any  original  process  or  proceeding  in  any  other  district  than  that 
whereof  he  is  an  inhabitant,  but  where  the  jurisdiction  is  founded  only  on  the 
fact  that  the  action  is  between  citizens  of  different  States,  suit  shall  be  brought 

only  in  the  district u  of  the  residence  of  either  the  plaintiff  or  the  defendant ;  ** 

*     *     * 

And  the  circuit  courts  shall  also  have  appellate  jurisdiction  from  the  district 
courts  under  the  regulations  and  restrictions  prescribed  by  law.20 

UNDER  INTERSTATE  COMMERCE  ACTS 

(a)  Under  the  provisions  of  section  12,  the  circuit  courts,  being 
courts  of  the  United  States,  are  given  jurisdiction  to  require  the  at- 
tendance and  testimony  of  witnesses  and  the  production  of  books  and 
papers  before  the  Commission.  This  jurisdiction  is  concurrent  with 
the  other  courts  of  the  United  States. 

(6)  Under  the  provisions  of  section  12  circuit  courts  of  the  United 
States  in  ease  of  contumacy  or  refusal  to  obey  a  subpoena  issued  to  a 
carrier  subject  to  the  act,  to  issue  an  order  requiring  the  carrier  or 
other  person  to  appear  before  the  Commission  and  produce  books  and 
papers,  if  so  ordered.  This  jurisdiction  is  exclusive  in  the  circuit 
courts. 

18  The  jurisdiction  of  circuit  courts  applicable  to  other  than  interstate  com- 
merce matters  is  in  the  notes  below. 

"Add  "Or  a  controversy  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  or  a  controversy  between  citizens  of  a  State  and 
foreign  States,  citizens  or  subjects,  in  which  the  matter  in  dispute  exceeds,  ex- 
clusive of  interest  and  costs,  the  sum  or  value  aforesaid." 

18  Compare  the  provisions  of  the  interstate  commerce  acts  relating  to  the  venue 
of  causes  brought  thereunder  (sec.  167,  post). 

19  Add  ' '  Nor  shall  any  circuit  or  district  court  have  cognizance  of  any  suit, 
except  upon  foreign  bills  of  exchange,  to  recover  the  contents  of  any  promissory 
note  or  other  chose  in  action  in  favor  of  any  assignee,  or  of  any  subsequent  holder 
if  such  instrument  be  payable  to  bearer  and  be  not  made  by  any  corporation, 
unless  such  suit  might  have  been  prosecuted  in  such  court  to  recover  the  said  con- 
tents if  no  assignment  or  transfer  had  been  made." 

"Appeals  from  district  courts  to  circuit  courts  were  abolished  by  section  4  of 


200  JURISDICTION  OP  COURTS 

(c)  Under  the  provisions  of  section  16  circuit  courts  have  jurisdic- 
tion to  enforce  an  order  of  the  Commission  other  than  for  the  pay- 
ment of  money,  if  a  carrier  fails  or  neglects  to  obey  the  same.    This 
jurisdiction  is  exclusive  in  the  circuit  courts. 

(d)  Under  the  provisions  of  section  16  jurisdiction  is  given  to  the 
circuit  courts  to  enforce  an  order  of  the  Commission  for  the  pay- 
ment of  money.    This  jurisdiction  is  exclusive  in  the  Federal  courts. 

(e)  Under  the  provisions  of  section  23  of  the  act  to  regulate  com- 
merce circuit  courts  have  jurisdiction  upon  the  relation  of  any  per- 
son alleging  such  violations  of  the  acts  as  prevents  the  relator  from 
having  interstate  traffic  moved  at  the  same  rates,  and  upon  as  favor- 
able terms  or  conditions  as  given  to  others  for  like  traffic  under  sim- 
ilar conditions,  to  issue  writs  of  mandamus.    This  jurisdiction  is  con- 
current with  the  district  courts. 

(/)  Under  the  provisions  of  section  20  circuit  courts  have  jurisdic- 
tion upon  the  application  of  the  Attorney-General,  at  the  request  of 
the  Commission,  to  issue  writs  of  mandamus,  commanding  carriers  to 
comply  with  the  provisions  of  the  act.  This  jurisdiction  is  concur- 
rent with  the  district  courts. 

(g)  Under  the  provisions  of  section  9  circuit  courts  have  juris- 
diction to  entertain  suits  for  the  recovery  of  damages  from  carriers 
for  the  violations  of  the  provisions  of  the  act.  This  jurisdiction  is 
concurrent  with  the  district  courts. 

(h)  Under  the  provisions  of  section  3  of  the  Elkins'  law  the  cir- 
cuit courts  are  given  jurisdiction  to  enjoin  or  restrain  departures  from 
published  rates  or  discriminations  prohibited  by  law,  both  as  against 
the  carriers  and  the  parties  interested  in  the  traffic.  This  power  is 
not  conferred  by  section  12  of  the  act  to  regulate  commerce : 

INSTANCE. — In  U.  S.  v.  M.  P.  E.  Co.  (65  Fed.,  903)  it  was  held  that  under 
the  present  twelfth  section  a  district  attorney,  under  authority  of  the  Attorney- 
General,  may  prosecute  suits  in  the  name  of  the  United  States  against  carriers  to 
enjoin  them  from  discriminating  against  one  city  in  favor  of  another,  and  no  pre- 
liminary investigation  by  the  Commission  is  required  in  order  to  give  jurisdiction. 
Overruled  as  to  authority  of  the  Commission,  prior  to  the  passage  of  the  Elkins' 
law,  by  the  Supreme  Court  in  M.  P.  E.  Co.  v.  U.  S.  (189  U.  S.,  274). 

Sec.  162.  Jurisdiction  of  district  courts. — 

UNDER  REVISED  STATUTES 

The  jurisdiction  of  the  District  Courts  of  the  United  States  is 
provided  for  by  section  563,  Revised  Statutes;  as  far  as  may  be  ap- 
plicable to  interstate  commerce  matters  n  their  jurisdiction  is : 

the  act  of  March  3,  1891  (26  Stat.  L.,  826)  and  the  same  section  provided  for 
appeals  from  the  circuit  courts  to  the  Supreme  Court  of  the  United  States,  or  to 
the  Circuit  Courts  of  Appeal,  as  provided  in  sections  5  and  6  of  said  act. 

11  The  jurisdiction  of  district  courts  extends  to  many  other  matters  than  above 
set  forth  (see  sec.  563,  E.  S.). 


JURISDICTION  OP  COURTS  201 

First.  Of    all    crimes    and    offenses    cognizable    under    the    authority    of    the 
United   States,   committed   within   their   respective   districts,   or   upon   the   high 
seas,  the  punishment  of  which  is  not  capital,  except  in  the  cases  mentioned  in 
section  fifty-four  hundred  and  twelve,  Title  '  CRIMES.  ' B 
******* 

Third.  Of  all  suits  for  penalties  and  forfeitures  incurred  under  any  law  of 
the  United  States. 

Fourth.  Of  all  suits  at  common  law  brought  by  the  United  States,  or  by  any 
officer  thereof,  authorized  by  law  to  sue. 

******* 

Sixth.  Of  all  suits  for  the  recovery  of  any  forfeiture  or  damages  under  sec- 
tion thirty-four  hundred  and  ninety,  Title  "DEBTS  DUE  BY  OR  TO  THE  UNITED 
STATES  ; ' '  and  such  suits  may  be  tried  and  determined  by  any  district  court 
within  whose  jurisdictional  limits  the  defendant  may  be  found. 

******* 

Eighth.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction;  saving  to 
suitors  in  all  cases  the  right  of  a  common-law  remedy,  where  the  common  law 
is  competent  to  give  it;  and  of  all  seizures  on  land  and  on  waters  not  within  ad- 
miralty and  maritime  jurisdiction.  And  such  jurisdiction  shall  be  exclusive,  ex- 
cept in  the  particular  cases  where  jurisdiction  of  such  causes  and  seizures  is 
given  to  the  circuit  courts.  [And  shall  have  original  and  exclusive  cognizance  of 
all  prizes  brought  into  the  Unite.d  States,  except  as  provided  in  paragraph  six 
of  section  six  hundred  and  twenty-nine.] 
******* 

Eleventh.  Of  all  suits  authorized  by  law  to  be  brought  by  any  person  for  the 
recovery  of  damages  on  account  of  any  injury  to  his  person  or  property,  or  of 
the  deprivation  of  any  right  or  privilege  of  a  citizen  of  the  United  States  by  any 
act  done  in  furtherance  of  any  conspiracy  mentioned  in  section  nineteen  hundred 
and  eighty-five,  Title,  ' '  CIVIL  EIGHTS.  ' ' 

Twelfth.  Of  all  suits  at  law  or  in  equity  authorized  by  law  to  be  brought  by 
any  person  to  redress  the  deprivation,  under  color  of  any  law,  ordinance,  regu- 
lation, custom,  or  usage  of  any  State,  of  any  right,  privilege,  or  immunity  secured 
by  the  Constitution  of  the  United  States,  or  of  any  right  secured  by  any  law  of 
the  United  States  to  persons  within  the  jurisdiction  thereof. 


UNDER  INTERSTATE  COMMERCE  ACTS 

(a)  Under  the  provisions  of  section  23  of  the  act  to  regulate  com- 
merce, district  courts  have  jurisdiction  upon  the  relation  of  any  per- 
son alleging  such  violation  of  the  act  as  prevents  the  relator  from  hav- 
ing interstate  traffic  moved  at  the  same  rates  and  upon  as  favorable 
terms  and  conditions  as  given  to  others  for  like  traffic  under  similar 
conditions,  to  issue  writs  of  mandamus.  This  jurisdiction  is  concur- 
rent with  the  circuit  courts. 

(&)  Under  the  provisions  of  section  12  a  district  court,  being  a  court 
of  the  United  States,  may  compel  the  attendance  and  testimony  of  wit- 
nesses and  the  production  of  books  and  documentary  evidence  before 

22  Eelating  to  the  deposit  of  fraudulent  papers  in  the  archives  of  the  surveyor- 
general's  office  of  California. 


202  JURISDICTION  OF  COURTS 

the  Commission.    This  jurisdiction  is  concurrent  with  other  courts  of 
the  United  States. 

(c)  Under  the  provisions  of  section  20,  district  courts  have  juris- 
diction, upon  the  application  of  the  Attorney-General,  at  the  request 
of  the  Commission,  to  issue  writs  of  mandamus  commanding  carriers 
to  comply  with  the  provisions  of  the  act.    This  jurisdiction  is  concur- 
rent with  the  circuit  courts. 

(d)  Under  the  provisions  of  section  9,  district  courts  have  jurisdic- 
tion to  entertain  suits  for  the  recovery  of  damages  from  carriers  for 
violation  of  the  provisions  of  the  act.    This  jurisdiction  is  concurrent 
with  the  circuit  courts.4* 

Sec.  163.  Jurisdiction  of  Federal  courts  in  suits  for  forfeiture. — Juris- 
diction of  suits  for  forfeitures"  is  by  statute  conferred  on  the  dis- 
trict courts.  The  third  paragraph  of  section  563  of  the  Revised 
Statutes  provides  that  the  district  courts  shall  have  jurisdiction — 

Third.  Of  all  suits  for  penalties  and  forfeitures  incurred  under  any  law  of 
the  United  States.28 

The  venue  of  suits  for  penalties  or  forfeitures  is  provided  in  sec- 
tion 732  of  the  Revised  Statutes — 

All  pecuniary  penalties  and  forfeitures  may  be  sued  for  and  recovered  either 
in  the  district  where  they  accrue  or  in  the  district  where  the  offender  is  found." 

It  is  provided  in  section  16  of  the  act  to  regulate  commerce  that 
all  the  forfeitures27  provided  for  by  the  act  shall  be  payable  into 

83 The  statute  refers  to  district  or  circuit  courts  "of  competent  jurisdiction;" 
as  the  limitation  contained  in  the  judiciary  acts  do  not  apply  to  suits  brought 
under  this  section,  suits  may  be  brought  in  any  district  in  which  the  defendant  can 
be  found  (Van  Patten  v.  C.  M.  &  St.  P.  K.  Co.,  74  Fed.,  981). 

24  The  term  forfeiture  used  in  this  connection  refers  only  to  those  instances  in 
which  the  United  States  may  sue  for  money  damages  for  violations  of  the  act. 

25  This  provision  is  not  repealed  or  modified  by  the  judiciary  act  of  1875,  as 
amended  by  the  act  of  March  3,  1888  (Helwig  v.  U.  S.,  188  U.  S.,  605). 

28  This  provision  is  general  and  applies  to  any  other  provision  concerning  venue 
(Pentlarge  v.  Kirby,  19  Fed.,  501). 

*  The  forfeitures  provided  by  the  act  to  regulate  commerce  are : 

(a)  Under  section  16  of  the  act  for  a  carrier  knowingly  failing  or  neglecting 
to  obey  an  order  of  the  Commission,  made  under  the  provisions  of  section  15  of 
that  act,  forfeiture  to  the  United  States  of  $5,000  for  each  offense;  every  dis- 
tinct violation  is  a  separate  offense  and  in  case  of  the  continuing  violation,  each 
day  is  to  be  deemed  a  separate  offense. 

(6)  Under  section  20,  the  failure  of  a  carrier  to  make  and  file  the  annual  re- 
ports, as  required  by  that  section  or  a  failure  to  make  specific  answer  to  any 
question  authorized  by  the  same  section  within  thirty  days  from  the  time  it  is 
legally  required  to  do  so,  a  forfeiture  to  the  United  States  of  one  hundred  dol- 
lars for  each  and  every  day  it  shall  be  in  default  with  respect  thereto. 

(c)  Failure  to  file  monthly  reports  of  hearings  and  expenses  or  special  reports 
of  same,  forfeiture  as  provided  in  (ft)    (section  20). 

(d)  The  failure  or  refusal  of   a  carrier  to  keep  the  accounts,  records,  and 
memoranda    prescribed   by    the    Commission,   forfeiture   for    each    day    of    $500 
(sec.  20). 

(e)  A  failure  to  submit  the  accounts  to  the  inspection  of  the  Commission  or  its 
examiners,  a  forfeiture  the  same  as  in  (d)   (sec.  20). 

(/)  Knowingly  receiving  or  accepting  from  a  common  carrier  a  rebate  or  off- 
set, a  forfeiture  to  the  United  States  of  three  times  the  amount  received  or 


JURISDICTION  OP  COURTS  203 

the  Treasury  of  the  United  States,  and  shall  be  recoverable  in  a  civil 
suit  in  the  name  of  the  United  States,  brought  in  the  district  where 
the  carrier  has  its  principal  operating  office,  or  in  any  district  through 
which  the  road  of  the  carrier  runs. 

It  is  provided  in  section  20  that  a  forfeiture  for  failure  to  file  annual 
reports  or  make  specific  answers  to  questions,  or  filing  monthly  re- 
ports, or  special  reports,  shall  be  recovered  in  the  same  manner  as 
above  provided  under  section  16. 

The  forfeitures  provided  for  under  section  1  of  the  Elkins'  law 
(three-fold  the  value  of  the  rebate  or  offset)  are  to  be  recovered  in  any 
court  of  the  United  States  of  competent  jurisdiction28  by  a  civil  ac- 
tion. 

Sec.  164.  Jurisdiction  in  mandamus. — Jurisdiction  to  issue  writs  of 
mandamus  generally  is  exercised  by  the  Federal  courts  under  sec- 
tion 716,  Eevised  Statutes: 

*  *  *  They  [Supreme  Court  and  the  circuit  and  district  courts]  shall  also 
have  power  to  issue  all  writs  not  specifically  provided  for  by  statute,  which  may 
be  necessary  for  the  exercise  of  their  respective  jurisdictions,  and  agreeable  to  the 
usages  and  principles  of  law. 

The  jurisdiction  of  these  courts  to  issue  writs  of  mandamus  is  de- 
rived from  necessity  and  from  this  section.29  The  writ  can  not  issue 
in  an  independent  suit  but  only  as  ancillary  to  a  preacquired  juris- 
diction ; w  for  this  reason,  the  Congress  having  authority  to  do  so,81 
has  conferred  upon  the  circuit  and  district  courts  jurisdiction  to  en- 
tertain independent  suits  under  the  interstate  commerce  acts  pray- 
ing for  writs  of  mandamus. 

Jurisdiction  is  given  by  the  act  to  regulate  commerce  to  the  district 
and  circuit  courts  to  issue  writs  of  mandamus  for  the  purpose  of  (a) 
commanding  carrier  to  move  like  traffic  under  similar  conditions  to 
any  other  shipper  (sec.  23),  (6)  Upon  application  of  the  Attorney- 
General  at  the  request  of  the  Commission  to  compel  compliance  with 
or  forbid  a  violation  of  the  act  (sec.  20 ).82 

three  times  the  value  of  the  entire  consideration;  this  provision  to  include  all 
rebates  or  other  considerations  received  for  six  years  prior  to  the  commencement 
of  the  action  (Elkins'  law,  sec.  1). 

28  Under  the  provisions  of  section  732,  Eevised  Statutes,  this  would  control  the 
venue  in  such  suits. 

29  Board  of  Liquidation  v.  IT.  S.  (108  Fed.,  689),  U.  S.  v.  Capdevielle  (118  Fed., 
809). 

80  Kendall  v.  U.  S.  (12  Pet.,  524),  The  Assessors  v.  Osbornes  (9  Wall.,  567), 
Bath  County  v.  Amy  (13  Wall.,  244),  Heine  v.  Commissioners  (19  Wall.,  655), 
U.  S.  v.  Schurz  (102  U.  S.,  394),  Louisiana  v.  Jumel  (107  U.  S.,  762). 

81Knapp  v.  L.  S.  &  M.  S.  B.  Co.  (197  U.  S.,  540). 

82  The  former  law  limited  the  jurisdiction  of  the  courts  to  issue  writs  of  man- 
damus to  cases  of  failure  to  publish  and  file  schedules.  Jurisdiction  to  issue 
writs  of  mandamus  is  not  to  be  inferred  from  a  grant  of  authority  to  the  In- 
terstate Commerce  Commission  to  enforce  the  act  to  regulate  commerce  or  from 
a  provision  in  the  act  directing  district  attorneys  or  the  Attorney-General  to  in- 
stitute necessary  proceedings  for  the  enforcement  of  its  violation  (Knapp  v.  L. 
S.  &  M.  S.  E.  Co.,  197  U.  S.,  540).  The  difference  between  the  jurisdiction  and 


204  JURISDICTION  OP  COURTS 

The  writ  of  mandamus  may  issue  in  the  first  case,  upon  proper 
terms  as  to  security  although  the  question  of  fact  as  to  proper  com- 
pensation may  not  be  determined;  the  writ  of  mandamus  in  such 
cases  is  cumulative. 

To  secure  the  writ  of  mandamus,  a  discrimination  must  be  made 
out: 

INSTANCE.— In  II.  S.  v.  D.  L.  &  W.  E.  Co.  (40  Fed.,  101),  held  that  the  man- 
damus provision  of  the  act  does  not  authorize  the  court  to  grant  relief  where  a 
case  of  unjust  discrimination  is  not  made  out,  although  the  act  provides  that 
the  writ  may  issue  notwithstanding  a  question  of  fact  is  undetermined. 

Jurisdiction  in  mandamus  has  been  exercised  by  the  Federal  courts 
to  compel  the  carrier  to  furnish  cars,  but  the  comity  between  the 
Federal  courts  and  the  Commission  is  such  that  the  court  will  not  act 
in  a  specific  case  respecting  the  furnishing  of  facilities  where  the 
Commission  has  acted.* 

The  courts  may  compel  the  furnishing  of  cars  by  mandamus : 
INSTANCE.— In  W.  V.  N.  E.  Co.  v.  U.  S.  ex  reL  (134  Fed.,  198)  where  the  juris- 
diction of  the  power  of  the  court  to  fix  percentage  of  cars  was  involved  the 
court  said:  "The  acts  of  the  Congress  forbade  discrimination,  and  made  it  un- 
lawful to  give  any  undue  or  unreasonable  preference  or  advantage  to  particular 
persons,  companies,  corporations,  or  localities,  or  any  particular  description  of 
traffic,  or  to  subject  them  to  any  undue  or  unreasonable  prejudice  or  disad- 
vantage in  any  respect  whatever,  and  vested  jurisdiction  in  the  circuit  and  district 
courts  to  proceed  by  mandamus  as  a  cumulative  remedy  for  violations  of  the 
statutory  provisions.  *  *  *  We  are  unable  to  accept  the  view  that  the  Con- 
gress intended  to  confine  the  scope  of  the  writ  to  admonition  merely,  or  to  a 
general  command  to  desist  from  discrimination,  rather  than  from  the  particular 
action  in  which  the  discrimination  consisted.  By  the  findings  the  delivery  to 
relator  of  any  less  than  31  per  cent,  of  the  supply  amounted  to  unlawful  dis- 
crimination, and  the  judgment  of  the  court  did  no  more  than  to  correct  it." 

The  cases'*  brought  to  compel  by  mandamus  the  filing  of  reports 
are: 

U.  S.  ex  reL  v.  N.  Y.  &  T.  S.  S.  Co.  (Circuit  Court,  New  York). , 

1893,  petition  for  mandamus  to  compel  filing  of  annual  report; ,  1897, 

petition  dismissed. 

U.  S.  ex  rel.  v.  Seaboard  E.  Co.  (Circuit  Court,  Alabama). ,  1896, 

petition  for  mandamus  to  compel  filing  of  annual  reports;  July  2,  1897,  man- 
damus granted. 

power  of  Federal  courts  to  issue  extraordinary  legal  -writs  and  equitable  writs  to 
protect  rights  arising  under  the  interstate  commerce  acts  or  under  the  common 
law  is  manifest.  Courts  of  law  can  only  issue  writs  in  cases  specifically  provided 
for  by  statute;  but  courts  of  equity,  beyond  doubt,  have  inherent  jurisdiction  to 
issue  writs,  including  injunction,  to  meet  the  exigencies  of  a  case  before  them. 
This  distinction,  which  has  been  denied,  is  fundamental.  If  true,  however,  it 
will  assist  in  making  the  election  whether  to  proceed  upon  the  law  or  the  equity 
side  of  the  court. 

13  B.  &  O.  E.  Co.  v.  Interstate  Commerce  Commission  decision  September  23, 
1908,  in  the  district  court  of  the  United  States  for  the  district  of  Maryland. 

•*  From  list  published  by  the  Department  of  Justice.  Citations  were  inserted  by 
author. 


JURISDICTION  OF  COURTS  205 

U.  S.  ex  rel.  v.  B.,  Z.  &  C.  B.  Co.  (Circuit  Court,  Ohio). ,  1896, 

petition  for  mandamus  to  compel  filing  of  annual  reports;  January  11,  1897,  pe- 
tition dismissed. 

U.  8.  ex  rel.  v.  C.  K.  &  S.  K.  Co.  (Circuit  Court,  Michigan). ,  1896, 

petition  for  mandamus  to  compel  filing  of  annual  reports;  June  23,  1897,  petition 
dismissed. 

NOTE. — At  the  same  time  61  other  suits  were  brought  in  various  United  States 
courts  to  compel  carriers  to  file  annual  reports  with  the  Commission,  but  these 
cases  were  subsequently  discontinued  because  the  carriers  agreed  to  file  reports. 

U.  S.  ex  rel.  v.  D.  &  H.  Co.  (Circuit  Court,  Massachusetts)  .—November  17, 
1903,  petition  to  compel  filing  of  annual  reports;  ,  1905,  case  discontinued. 

TJ.  S.  ex  rel.  v.  L.  S.  &  M.  S.  E.  Co.  (Circuit  Court,  Ohio).— November  18,  1903, 

petition  to  compel  filing  of  annual  reports;  ,  1904,  petition  dismissed; 

April  10,  1905,  Supreme  Court  affirmed  decision  of  circuit  court.  (See  Knapp  v. 
L.  S.  &  M.  S.  E.  Co.,  197  U.  S.,  540,  holding  that  circuit  court  had  no  original 
jurisdiction  under  act  March  3,  1887,  to  hear  and  determine  a  petition  seeking 
relief  by  mandamus.) 

TJ.  S.  ex  rel.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (Circuit  Court,  New  York)  .—November 
28,  1903,  petition  to  compel  filing  of  annual  reports;  ,  1905,  case  dis- 
continued. 

U.  S.  ex  rel.  v.  B.  &  M.  Co.  (Circuit  Court,  Massachusetts). — November  29, 
1903,  petition  to  compel  filing  of  annual  reports;  ,  1905,  case  discontinued. 

A  case  brought  by  the  Commission  asking  the  writ  of  mandamus 
against  carriers  subject  to  the  act  to  adhere  to  published  tariffs  is : 

U.  S.  v.  M.  P.  E.  Co.  (Circuit  Court,  Western  Missouri). — July  11,  1908,  in- 
formation filed  under  section  20  of  the  act  of  June  29,  1906,  for  writ  of  man- 
damus compelling  the  defendants  to  adhere  to  their  tariffs  on  grain.  Case 
pending. 

Sec.  165.  Jurisdiction  of  Federal  courts  to  enjoin,  set  aside,  annul, 
or  suspend  order  of  the  Commission. — The  amending  act  of  June  29, 
1906,  changed  the  procedure  in  respect  to  the  enforcement  of  orders 
of  the  Commission.  Prior  to  that  act  it  was  necessary  for  the  Com- 
mission to  institute  proceedings  in  the  courts  to  compel  obedience  to 
its  orders.  By  the  ^amending  act  the  orders  and  requirements  are 
made  self -executing  and  if  in  the  opinion  of  the  carrier  against  which 
an  order  is  issued  it  is  not  warranted  by  the  facts  or  the  law  the 
statute  provides  as  a  remedy  for  the  carrier  proceeding  in  the  cir- 
cuit courts  for  the  purpose  of  setting  aside,  annulling  or  suspending 
an  order  or  requirement. 

Section  16,  after  providing  for  the  venue  of  such  suits  in  the  sev- 
eral circuit  courts,  specifically  provides  that — 

Jurisdiction  to  hear  and  determine  such  suits  is  hereby  vested  in  such  courts. 

Suits  for  this  purpose  are  brought  upon  the  equity  side  of  the 
court,  the  bill  setting  up  in  addition  to  the  usual  facts  concerning  the 
complainant,  the  filing  of  the  petition  before  the  Commission,  the  hear- 
ing and  order  of  the  Commission,  etc.,  that  the  order  of  the  Commis- 
sion imposes  an  unjust,  unreasonable  and  illegal  restriction  upon 
interstate  commerce  and  upon  the  right  to  use,  control  and  manage  the 


206  JURISDICTION  OP  COURTS 

complainant's  business;  the  prayers  to  such  a  petition  are  for  a  writ 
of  injunction,  both  temporary  and  permanent. 

The  provisions  of  the  expediting  act83  apply  to  such  suits  includ- 
ing the  hearing  upon  application  for  preliminary  injunction.  The 
statute  also  provides  that  no  injunction,  interlocutory  order,  or  decree 
suspending  or  restraining  an  order  of  the  Commission  shall  be  grant- 
ed except  on  hearing  after  not  less  than  five  days  notice  to  the  Com- 
mission. 

The  suits  brought  against  the  Interstate  Commerce  Commission  to 
annul,  set  aside,  and  suspend  its  orders,  under  the  act  of  June  29, 
1906,  to  October  1,  1908,  are  as  follows: 

D.  L.  &  W.  E.  Co.  v.  I.  C.  C.  and  Preston  &  Davis  (Circuit  Court,  Southern 
District  of  New  York). — June  — ,  1907,  involving  order  of  the  Commission  re- 
specting practice  of  delivering  petroleum  in  tank  cars  to  a  certain  Brooklyn  (N. 
Y.)  terminal  in  Preston  &  Davis  v.  D.  L.  &  W.  E.  Co.  (12  I.  C.  C.,  114) ;  mo- 
tion for  preliminary  injunction  denied  (115  Fed.,  512). 

Alpheus  B.  Stickney  et  al.  v.  I.  C.  C.  (Circuit  Court,  Minnesota). — May  — , 
1908,  bill  to  set  aside  the  order  of  the  Commission  respecting  the  terminal  charge 
on  cattle  in  Cattle  Eaisers'  Assn.  v.  C.  G.  W.  E.  Co.  (I.  C.  C.  Docket  939)  ;  cer- 
tificate under  the  expediting  act;  motion  for  preliminary  injunction;  injunction 
granted;  2  cases. 

C.  &  A.  E.  Co.  v.  I.  C.  C.  (Circuit  Court,  Northern  Illinois),  June  1,  1908,  bill 
to  set  aside  the  order  of  the  Commission  respecting  the  distribution  of  cars  to 
coal  mines  in  Traer,  Eeceiver  v.  C.  &  A.  E.  Co.  (I.  C.  C.  Docket  1294;  13  I.  C. 
C.,  451);  certificate  under  expediting  act;  motion  for  preliminary  injunction; 
opinion  sustaining  order  in  part  June  29,  1908;  appeal  by  the  Commission  as  to 
that  part  of  order  set  aside  by  the  court. 

I.  C.  E.  Co.  v.  I.  C.  C.  (Circuit  Court,  Northern  Illinois),  June  1,  1908;  bill 
to  set  aside  the  order  of  the  Commission  respecting  distribution  of  cars  to  coal 
mines  in  Traer,  Eeceiver,  v.  C.  &  A.  E.  Co.  (I.  C.  C.  Docket  1294;  13  I.  C.  C., 
451);  certificate  under  expediting  act;  motion  for  preliminary  injunction;  opin- 
ion sustaining  order  in  part  June  29,  1908;  appeal  by  the  Commission  as  to 
part  of  order  set  aside  by  the  court. 

S.  P.  Co.  v.  I.  C.  C.  (Circuit  Court,  Southern  Texas),  June  24,  1908,  set  aside 
order  of  the  Commission  respecting  terminal  charges  in  Eichenberg  v.  S.  P.  Co. 
(14  I.  C.  C.,  250);  certificate  under  expediting  act;  motion  for  preliminary  in- 
junction. 

B.  &  O.  E.  Co.  v.  I.  C.  C.  (Circuit  Court,  Maryland),  July  20,  1908,  bill  to  set 
aside  the  order  of  the  Commission  respecting  the  distribution  of  coal  cars  in 
Bail  &  E.  Co.  v.  B.  &  O.  E.  Co.  (14  I.  C.  C.,  86)  ;  certificate  under  expediting 
act;  motion  for  preliminary  injunction. 

N.  Y.  C.  &  H.  E.  E.  Co.  v.  I.  C.  C.  (Circuit  Court,  Southern  District,  New 
York),  August  22,  1908,  bill  to  set  aside  the  order  of  the  Commission  respecting 
rates  on  flour  in  Hecker- Jones- Jewell  Milling  Co.  v.  B.  &  O.  E.  Co.  (14  I.  C.  C., 
356);  certificate  under  expediting  act;  motion  for  preliminary  injunction;  in- 
junction denied. 

"  Act  of  February  11,  1903   (32  Stat.  L.,  823)  ;  see  section  172. 


JURISDICTION  OF  COURTS  207 

S.  P.  Co.  v.  I.  C.  C.  (Circuit  Court,  Northern  California),  July  24,  1908,  bill 
to  set  aside  the  order  of  the  Commission  respecting  rates  on  lumber  in  Western 
Oregon  Lumber  Mfrs.  Assn.  v.  S.  P.  Co.  (14  I.  C.  C.,  61)  ;  certificate  under  ex- 
pediting act;  motion  for  preliminary  injunction. 

D.  L.  &  W.  E.  Co.  v.  I.  C.  C.  and  Eahway  V.  K.  Co.  (Circuit  Court,  Southern 
New  York),  August  7,  1908,  bill  to  set  aside  the  order  of  the  Commission  re- 
specting switch  connection  in  Rah  way  V.  E.  Co.  v.  D.  L.  &  W.  E.  Co.  (14  I.  C.  C., 
191);  certificate  under  expediting  act;  motion  for  preliminary  injunction;  in- 
junction granted. 

N.  Y.  C.  &  H.  E.  E.  Co.  v.  I.  C.  C.  (Circuit  Court,  Southern  New  York), 
August  28,  1908,  bill  to  set  aside  order  of  Commission  respecting  rates  on  flour 
and  grain  products  in  Banner  M.  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (14  I.  C.  C., 
398);  certificate  under  expediting  act;  motion  for  preliminary  injunction;  in- 
junction denied. 

Sec.  166.  Jurisdiction  to  enjoin  rates  effective  in  the  future. — Al- 
though some  have  expressed  the  opinion  that  the  Federal  courts  have 
no  jurisdiction  to  enjoin  a  rate  effective  in  the  future,  yet  the  weight 
of  authority  at  present  (November,  1908),  is  in  favor  of  the  proposi- 
tion. Certain  it  is,  the  Commission  has  no  authority  to  prevent  the 
taking  effect  of  a  rate  or  practice  (if  the  schedule  be  in  proper  form 
and  properly  filed) ;  so,  also,  the  State  courts  have  no  jurisdiction  in 
such  cases.  Referring  to  the  method  of  initiating  rates,  the  fact  that 
they  may  be  unjust  and  unreasonable,  the  necessity  for  a  tribunal  to 
stay  their  operation  if  clearly  violative  of  the  law  and  the  absence  of 
definite  legislative  provision  for  a  forum,  the  Commission  in  its  Twen- 
ty-First Annual  Report  (pp.  9-10)  said: 

"Under  the  operation  of  the  interstate  commerce  act  the  right  to  initiate  in- 
terstate rates  rests  entirely  with  the  railway,  which  may,  by  giving  thirty  days' 
notice,  put  into  effect  any  rate  or  any  regulation  or  practice  affecting  a  rate 
which  it  sees  fit.  The  Commission  is  not  required  to  approve  these  rates  and  has 
no  authority  whatever  to  condemn  them.  It  can  only  act  upon  a  rate  so  estab- 
lished by  the  railway  in  case  a  formal  complaint  is  filed  attacking  that  rate  and 
after  a  full  hearing.  This  is  the  express  provision  of  the  statute. 

"It  is  certainly  just  that  carriers  should  not  be  required  to  reduce  their 
transportation  charges,  nor  to  alter  their  rules  or  practices  affecting  such 
charges,  without  opportunity  to  be  heard  upon  their  part,  for  these  charges  are, 
in  essence,  the  property  of  the  railway.  It  seems  therefore  ordinarily  a  just 
provision  to  require  that  formal  notice  shall  be  given  the  railway,  with  oppor- 
tunity to  justify  its  rate,  before  a  reduction  is  ordered. 

"When,  however,  the  carrier  advances  a  rate,  or  so  changes  a  regulation  or 
practice  as  to  impose  upon  the  shipping  public  a  higher  charge  or  some  more 
onerous  condition  an  entirely  different  question  is  presented.  Eailway  rates  enter 
to  a  greater  extent  than  might  at  first  thought  be  supposed  into  the  business 
operations  of  this  country.  The  contracts,  of  the  coal  operator,  for  example, 
run  for  a  year,  frequently  for  two  years,  and  the  margin  of  profit  is  such  that 
an  advance  in  the  transportation  charge  of  no  more  than  5  or  10  cents  per 
ton  may  convert  a  profitable  contract  into  a  losing  one.  Engagements  for  the 
sale  of  grain  are  made  upon  the  basis  of  the  present  rate,  and  an  advance  of  1 
cent  per  100  pounds  may  entail  a  loss  in  the  transaction.  The  lumber  manu- 


208  JURISDICTION  OF  COURTS 

facturer  may  arrange  for  his  season's  cut  upon  the  basis  of  the  existing  tariff, 
and  a  change  may  mean  disaster  to  his  business. 

"The  above  examples  are  not  fancied  cases.  They  have  all  been  brought  to 
the  attention  of  the  Commission  within  the  past  year  in  such  a  form  as  to  pre- 
sent strong  grounds  for  relief.  Assuming  that  the  advanced  rate  would  be  per- 
fectly just  in  the  end,  it  may  nevertheless  be  entirely  unjust  to  suffer  it  to 
go  into  effect  at  the  time  named  by  the  carriers. 

"In  the  majority  of  instances,  perhaps,  advances  may  properly  be  made  be- 
fore the  reasonableness  of  the  advanced  rate  has  been  finally  passed  upon  by  this 
Commission;  but  there  are  also  many  instances  where  great  injustice  must 
result  unless  matters  can  be  kept  in  statu  quo  while  proceedings  are  pending  to 
test  the  reasonableness  of  the  advance.  Where  a  rate  has  been  maintained  for 
a  considerable  time  and  where  business  interests  will  be  seriously  affected  by  its 
change  it  is  no  undue  hardship  to  require  the  carrier  to  continue  that  rate  in 
effect  until  the  propriety  of  the  advance  can  be  passed  upon,  and  to  finally  make 
the  advance  itself  at  such  time  as  will  work  no  unnecessary  injury.  Certainly 
there  ought  to  be  some  tribunal  to  which  shippers  can  appeal,  with  authority,  if 
such  a  course  seems  just,  to  prohibit  the  advance  or  the  change  until  the  general 
question  can  be  considered. 

"At  the  present  time  it  is  not  very  clear  whether  such  authority  anywhere 
exists.  Certainly  the  Commission  does  not  possess  it.  It  cannot  itself  by  any 
order  restrain  the  advance,  nor  can  it,  apparently,  apply  to  the  courts  for  such 
a  restraining  order  unless  the  advance  works  such  a  discrimination  as  is  for- 
bidden by  the  so-called  Elkins  act,  and  this  is  not  usually  true  of  a  mere  in- 
crease in  the  rate.  In  several  instances  courts  of  equity  have  interfered  to  pro- 
hibit advances  pending  proceedings  before  the  Commission.  In  these  cases  an 
injunction  has  been  issued  in  favor  of  the  complainants  alone,  so  that  at  the 
present  time  the  general  public  is  paying  the  advanced  rate,  while  the  com- 
plainants are  being  charged  the  old  rate.  These  injunctions  were  granted  upon 
the  filing  of  a  bond — $10,000  in  one  case  and  $250,000  in  the  other.  It  is 
evident  that  the  application  of  any  such  practice  must  result  in  discrimination 
and  hardship  to  the  general  public. 

"We  therefore  recommend  that  when  an  advance  in  rates  or  a  change  in  any 
regulation  or  practice  is  attacked  by  complaint  to  this  Commission,  the  Com- 
mission shall  have  the  power,  in  its  discretion,  after  notice  to  and  hearing 
of  the  parties,  to  prohibit  the  taking  effect  of  the  advance  or  change  until  the 
matter  has  been  finally  heard  and  determined. 

"At  all  events  Congress  should  definitely  understand  that  we,  under  the 
present  law,  are  powerless  to  act  in  reference  to  these  advances  except  upon  the 
filing  of  a  formal  complaint  and  after  a  full  hearing  of  the  case." 

The  Federal  courts  have  jurisdiction  to  restrain  the  taking  effect 
of  rates  and  practices,  if  unjust  and  unreasonable : 

INSTANCE.— In  Riser  Co.  v.  C.  of  Ga.  R,  (158  Fed.,  193),  one  of  the  earliest 
cases,  a  preliminary  injunction  was  granted  against  a  proposed  advance  rate  on 
boots  and  shoes  from  Eastern  points  to  Atlanta  and  adjacent  territory,  April  25, 
1905.  There  was  reference  to  a  master;  and,  after  his  report,  the  injunction 
was  continued  in  force  pending  a  determination  by  the  Commission  of  the  rea- 
sonableness of  the  proposed  increase.  It  will  be  observed  that  this  case  was 
instituted  prior  to  the  passage  of  the  act  of  June  29,  1906,  and  prior  to  the  de- 
cision in  Abilene  C.  O.  Co.  v.  T.  &  P.  R.  Co.  (204  U.  S.,  426). 

In  Macon  Gro.  Co.  v.  A.  C.  L.  R.  Co.  (163  Fed.,  738),  it  was  held  that  the 
powers  given  the  Interstate  Commerce  Commission  by  the  act  of  June  29,  1906, 


JURISDICTION  OF  COURTS  209 

does  not  deprive  a  Federal  court  from  enjoining  the  putting  in  effect  of  an 
interstate  rate  which  is  shown  or  admitted  to  be  arbitrary,  unreasonable  and  un- 
just and  to  have  been  adopted  through  a  combination  in  restraint  of  trade,  until 
the  rate  can  be  passed  on  by  the  Commission,  in  a  case  where  irreparable  injury 
would  result  to  the  complainants  and  others  affected  by  such  rates  should  they  be 
put  in  force. 

In  Jewett  Bros.  &  Jewett  v.  C.  M.  &  St.  P.  E.  Co.  (156  Fed.,  160)  it  was 
held  that  the  circuit  court  of  the  United  States  has  jurisdiction  of  a  suit  by  a 
shipper  to  enjoin  a  railroad  company  from  putting  into  effect  a  proposed  rate 
alleged  to  be  unlawful,  in  violation  of  the  interstate  commerce  act,  either  be- 
cause unreasonable  and  unjust  in  itself  or  unduly  discriminatory,  when  the 
jurisdictional  amount  is  involved.  In  this  case  the  jurisdictional  amount  was 
alleged  on  the  total  amount  of  freight  charges  paid,  no  reference  being  made  to 
the  total  value  to  the  complainant  of  the  advance. 

In  the  United  States  circuit  court  for  Illinois,  Judge  Kohlsaat  granted  in  the 
spring  of  1907,  preliminary  injunctions  against  an  advance  in  rates  on  milk 
and  butter  at  the  suit  of  the  Beatrice  Creamery  Co.  and  Blue  Valley  Creamery 
Co.;  the  defendants  were  the  M.  C.  E.  Co.,  the  G.  T.  E.  Co.  and  P.  M.  E.  Co. 
Later,  and  while  the  injunction  was  still  in  force  and  effect,  the  same  complain- 
ants filed  a  petition  with  the  Commission  that  it  might  determine  the  reasonable- 
ness of  the  proposed  advance. 

But  not  in  a  case  brought  after  the  rate  has  gone  into  effect : 

INSTANCE. — In  Potlach  Lumber  Co.  v.  Spokane  International  and  other  car- 
riers (unreported),  Judge  Whitson,  sitting  in  the  circuit  court  for  the  eastern 
district  of  Washington,  declined  to  grant  an  injunction  against  advanced  lumber 
rates,  although  it  is  said  their  unreasonableness  was  admitted.  The  ground  of  the 
refusal  was  that  the  rate  having  already  become  effective  the  court  was  without 
jurisdiction  to  enjoin  the  taking  effect.  The  press  reports  (February,  1908)  of 
the  decision  read: 

' '  The  application  for  an  injunction  presents  a  very  different  question  from 
that  presented  to  Judges  Hanford  and  Wolverton  in  the  western  district  of  Wash- 
ington and  in  the  district  of  Oregon,  where  the  applications  were  made  prior 
to  the  time  the  rates  filed  by  the  carriers  went  into  effect,  November  1,  1907. 
The  application  here  was  not  made  until  after  the  rate  had  become  effective,  and 
it  is  held,  therefore,  that  the  court  has  no  power,  while  the  matter  is  pending  be- 
fore the  Commission,  at  least  until  it  has  acted  upon  it  to  enjoin  the  enforce- 
ment of  the  rates. 

' '  The  application  not  having  been  made  before  the  rate  become  effective  the 
injunction  will  be  denied,  but  the  case  will  be  held  pending  the  action  of  the 
Commission,  and  a  decree  will  be  entered  enforcing  the  rate  fixed  by  the  Com- 
mission, unless  shippers  are  dissatisfied  with  it  and  consider  it  unreasonable  and 
unjust,  when  the  question  will  be  considered  as  to  whether  the  same  right  is  in 
the  shipper  to  apply  to  set  aside  the  rates  fixed  by  the  Commission  as  is  in  the 
carrier  to  apply  when  those  rates  are  confiscatory.  Hearing  to  be  had  upon  the 
application  of  either  of  the  parties  dissatisfied  with  the  action  of  the  Com- 
mission. 

"Congress  has  not  expressly  given  the  courts  the  right  to  grant  temporary 
relief  to  shippers  pending  an  inquiry  made  by  the  Commission,  and  the  agita- 
tion for  an  amendment  of  present  laws  preventing  carriers  from  changing  rates 
without  the  consent  of  the  Commission  shows  the  incompleteness  of  the  law." 

The  Commission  held  these  rates  unreasonable  in  an  opinion  rendered  June  2, 
1908  (Potlach  Lumber  Co.  v.  N.  P.  E.  Co.  (14  I.  C.  C.,  41). 


210  JURISDICTION  OP  COURTS 

Such  a  suit  must  be  brought  in  the  proper  district : 
INSTANCE.— In  Sunderland  v.  C.  R.  I.  &  P.  E.  Co.  (158  Fed.,  877)  a  temporary 
injunction  against  an  unjust  and  unreasonable  charge  had  been  granted  but  was 
vacated  subsequently  when  it  appeared  that  the  defendant  was  not  an  inhab- 
itant of  the  district  in  which  the  suit  was  brought. 

Sec.  167.  Jurisdiction  over  crimes  and  offenses. — Offenses  under  in- 
terstate commerce  acts  being  offenses  against  the  United  States  are 
cognizable  only  by  the  Federal  courts. 

By  act  of  August  13,  1888,"8  the  circuit  courts  of  the  United  States 
"shall  have  exclusive  cognizance  of  all  crimes  and  offenses  cognizable 
under  the  authority  of  the  United  States,  except  as  otherwise  provided 
by  law,  and  concurrent  with  the  jurisdiction  of  the  district  courts"  as 
provided  in  section  563,  Revised  Statutes  *  (see  section  162,  ante,  for 
jurisdiction  of  district  courts  over  crimes  and  offenses). 

The  offenses  provided  by  the  act  to  regulate  commerce  are : 

(a)  Under  the  provisions  of  section  1,  it  is  a  misdemeanor  to  vio- 
late the  pass  provision,  either  by  the  carrier  or  one  using  a  pass ;  jur- 
isdiction of  such  an  offense  is  conferred  upon  the  same  court  as  by 
the  Elkins '  law,  namely : 

In  any  court  of  the  United  States  having  jurisdiction  of  crimes  within  the 
district  in  which  such  violation  was  committed,  or  through  which  the  transporta- 
tion may  have  been  conducted;  and  whenever  the  offense  is  begun  in  one  juris- 
diction and  completed  in  another  it  may  be  dealt  with,  inquired  of,  tried,  de- 
termined, and  punished  in  either  jurisdiction  in  the  same  manner  as  if  the  of- 
fense had  been  actually  and  wholly  committed  therein.88 

(&)  Under  the  provisions  of  section  10:  (1)  Wilful  omission  or  fail- 
ure to  observe  the  act,  by  a  common  carrier,  is  a  misdemeanor  pun- 
ishable by  a  fine  not  to  exceed  $5,000  upon  the  conviction  thereof  in 
any  district  court  of  the  United  States  within  the  jurisdiction  of 
which  such  offense  was  committed;  (2)  but  if  the  offense  shall  be  un- 
lawful discrimination  of  rates  the  additional  punishment  or  im- 
prisonment in  the  penitentiary  for  not  exceeding  two  years  may  be 
imposed;  (3)  false  billing  by  a  common  carrier  is  a  misdemeanor  and 
punishable  by  a  fine  not  exceeding  $5,000  or  imprisonment  in  the 
penitentiary  for  a  term  of  not  exceeding  two  years  or  both,  in  the 
discretion  of  the  court  upon  conviction  thereof  in  any  court  of  the 
United  States  of  competent  jurisdiction  within  the  district  in  which 
the  offense  was  committed;  (4)  false  billing  by  shippers  or  other 
persons  is  a  fraud  which  is  declared  to  be  a  misdemeanor  punishable 
and  triable  by  the  same  court;  (5)  inducing  a  common  carrier  to 

34  25  Stat.  L.,  433. 

v  Section  587,  Kevised  Statutes,  provides  for  the  certification  of  cases  from 
the  district  courts  to  the  circuit  courts.  As  to  sufficiency  of  indictment  under 
the  act,  see  U.  S.  v.  Tozer  (37  Fed.,  635),  U.  S.  v.  Morsman  (42  Fed.,  448).  TL 
S.  v.  Hanley  (71  Fed.,  672),  U.  S.  v.  Howell  (56  Fed.,  21). 

*  For  the  constitutionality  of  this  provision  see  section  168, 


JURISDICTION  OP  COURTS  211 

discriminate  unjustly  or  aiding  or  abetting  such  unjust  discrimination 
is  a  misdemeanor  punishable  by  a  fine  of  not  exceeding  $5,000  or  im- 
prisonment in  the  penitentiary  not  exceeding  two  years  in  any  court 
of  the  United  States  of  competent  jurisdiction  within  the  district  in 
which  such  offense  was  committed,  and  one  inducing  such  discrim- 
ination and  the  carrier  are  liable  jointly  or  severally  in  an  action 
on  the  case  brought  by  any  consignor  or  consignee  discriminated 
against  in  any  court  of  the  United  States  of  competent  jurisdiction 
for  all  damages  caused  by  or  resulting  from  such  discrimination. 

(c)  Under  the  provisions  of  section  20:     (1)  It  is  a  misdemeanor 
for  any  person  to  wilfully  make  any  false  entry  in  books  of  account 
subject  to  a  fine  of  not  less  than  $1,000  or  more  than  $5,000  or  im- 
prisonment for  a  term  of  not  less  than  one  year  nor  more  than  three 
years  or  both  such  fine  and  imprisonment  upon  conviction  in  any 
court  of  the  United  States  of  competent  jurisdiction;  and  wilfully 
destroying,  mutilating,  altering,  or  by  other  means  or  devices  falsi- 
fying records,  or  wilfully  neglecting  or  failing  to  make  full,  true,  and 
correct  entries  in  such  accounts,  or  keeping  other  accounts  than  those 
prescribed  are  denominated  the  same  offense  and  subject  to  the  same 
penalty  before  the  same  court;  (2)  divulging  facts  or  information  by 
an  examiner,  excepting  as  ordered  so  to  do,  subjects  him  to  a  fine  of 
not  more  than  $5,000,  or  imprisonment  for  a  term  not  exceeding  two 
years  upon  conviction  in  any  court  of  the  United  States  of  competent 
jurisdiction. 

(d)  Under  section  1  of  the  Elkins'  law:  (1)  It  is  a  misdemeanor 
for  the  corporation  carrier  to  do  or  omit  to  do  any  act  which  would 
be  a  misdemeanor  if  done  or  omitted  to  be  done  by  any  director  or 
officer  of  the  corporation  and  upon  conviction  in  any  court  of  the 
United  States  having  jurisdiction  of  crimes  within  the  district  in 
which  such  violation  was  committed,  or  through  which  the  transporta- 
tion may  have  been  conducted;  and  whenever  the  offense  is  begun 
in  one  jurisdiction  and  completed  in  another  it  may  be  "dealt  with, 
inquired  of,  tried,  determined,  and  punished  in  either  jurisdiction  in 
the  same  manner  as  if  the  offense  had  been  actually  and  wholly 
committed  therein,"  and  the  corporation  is  subject  to  the  same  pen- 
alties as  are  prescribed  for  individuals  in  the  act  to  regulate  com- 
merce; (2)  the  wilful  failure  upon  the  part  of  a  carrier  to  file  and 
publish  tariffs  or  rates,  or  strictly  to  observe  them  is  a  misdemeanor 
and  subjects  the  carrier  upon  conviction  by  a  court  as  stated  in  (1) 
above  to  a  fine  of  not  less  than  $1,000  nor  more  than  $20,000  for  each 
offense;   (3)  carriers  or  shippers  who  shall  offer,  grant,  or  give,  or 
solicit,  accept,  or  receive  any  rebates,  concessions  or  discriminations 
are  guilty  of  a  misdemeanor  and  subject  to  a  fine  of  not  less  than 
$1,000  nor  more  than  $20,000  upon  conviction  by  a  court  as  in  (1), 


212  JURISDICTION  OP  COURTS 

provided  that  if  the  party  convicted  of  giving  or  receiving  rebates 
shall  be  a  natural  person  he  is  in  addition  to  the  fine  liable  to  impris- 
onment in  the  penitentiary  for  a  term  not  exceeding  two  years;  (4) 
and  any  departure  or  offer  to  depart  from  the  filed  and  published 
rate  is  an  offense  under  section  1  of  the  Elkins'  law,  and  punishable 
by  the  fine  (and  if  a  natural  person  the  imprisonment)  as  therein 
provided  upon  conviction  in  a  court  of  the  United  States,  as  in  (1). 

The  indictments  for  alleged  criminal  violations  of  the  act  to  reg- 
ulate commerce  prior  to  the  passage  of  the  Elkins  law  are : " 

U.  S.  v.  Tozer  (District  Court,  Missouri). — March  8,  1888,  indictment  found 
for  giving  rebates;  December  17,  1892,  indictment  nol.  pressed  (37  Fed.,  635; 
39  Fed.,  369;  39  Fed.,  904). 

U.  S.  v.  Morsman  (District  Court,  Missouri).— May  9,  1890,  indictment  found 
for  undue  prejudice  in  transporting  goods  by  express;  May  21,  1890,  indictment 
quashed  (42  Fed.,  448). 

U.  S.  v.  M.  C.  E.  Co.  (District  Court,  Illinois). — May  10,  1890,  indictment 
found  for  charging  less  than  tariff  rates;  June  23,  1890,  Street  found  guilty  and 
fined  $3,000;  others  acquitted  or  discharged  (43  Fed.,  26). 

IT.  S.  v.  L.  S.  &  M.  S.  B.  Co.  (District  Court,  Ohio).— October  15,  1890,  in- 
dictment found  for  failure  to  post  tariffs;  November  15,  1892,  indictment  nol. 
pressed. 

U.  S.  v.  C.,  C.  &  S.  E.  Co.  (District  Court,  Ohio).— October  15,  1890,  indict- 
ment found  for  failure  to  post  tariffs;  November  15,  1892,  indictment  quashed. 

U.  S.  v.  N.  Y.,  L.  E.  &  W.  E.  Co.  (District  Court,  Ohio).— October  15,  1890, 
indictment  found  for  failure  to  post  tariffs;  November  15,  1892,  indictment 
nol.  prossed. 

U.  S.  v.  C.,  C.,  C.  &  St.  L.  B.  Co.  (District  Court,  Ohio).— October  15,  1890, 
indictment  found  for  failure  to  post  tariff;  November  15,  1902,  indictment  nol. 
prossed. 

U.  S.  v.  Johnson  (District  Court,  Illinois). — December  5,  1890,  indictment 
found  for  charging  less  than  tariff  rates;  November  22,  1892,  indictment  nol. 
prossed. 

U.  S.  v.  Miller  (District  Court,  Illinois). — December  5,  1890,  indictment  found 
for  charging  less  than  tariff  rates;  April  5,  1893,  indictment  nol.  prossed. 

U.  S.  v.  Miller  (District  Court,  Illinois). — December  5,  1890,  indictment  found 
for  charging  less  than  tariff  rates ;  November  22,  1892,  verdict  of  acquittal. 

U.  S.  v.  Egan  (District  Court,  Illinois). — December  5,  1890,  indictment  found 
for  charging  less  than  tariff  rates;  November  22,  1892,  indictment  nol.  prossed. 

U.  S.  v.  Edmundson  (District  Court,  Missouri). — December  17,  1890,  indict- 
ment found  for  false  report  of  weight;  June  8,  1891,  prisoner  plead  guilty,  and 
fined  $100  on  each  count. 

U.  S.  v.  Egan  (District  Court,  Minnesota). — January  22,  1891,  indictment 
found  for  selling  tickets  at  less  than  published  rates;  July  9,  1891,  verdict  of 
acquittal  directed  by  the  court. 

U.  S.  v.  McCormick  (District  Court,  Maryland). — March  16,  1891,  indictment 
for  false  billing;  May  13,  1891,  verdict  of  guilty;  fined  $100. 

U.  S.  v.  Stimson  (District  Court,  Indiana). — March  28,  1891,  indictment  found 
for  charging  less  than  tariff  rates;  December  7,  1892,  indictment  nol.  prossed. 

•  The  lists  in  this  section  and  in  section  171  are,  with  the  exception  of  cita- 
tions, from  a  pamphlet  published  by  the  Department  of  Justice. 


JURISDICTION  OF  COURTS  213 

U.  S.  v.  Howell  (District  Court,  Missouri). — April  10,  1891,  indictment  found 
for  false  weighing;  July  21,  1892,  Howell  and  Tibbits  found  guilty;  each  fined 
$2,000  and  sentenced  to  prison  for  eighteen  months  (56  Fed.,  21). 

U.  S.  v.  Eogers  (District  Court,  Tennessee). — June  4,  1891,  indictment  found 
for  false  billing;  December  19,  1891,  indictment  nol.  pressed. 

U.  S.  v.  Eobertson  (District  Court,  Tennessee). — June  4,  1891,  indictment 
found  for  inducing  to  discriminate;  December  19,  1891,  indictment  nol.  prossed. 

U.  S.  v.  Dorr  (District  Court,  Tennessee). — June  4,  1891,  indictment  found 
for  inducing  to  discriminate;  December  19,  1891,  indictment  nol.  prossed. 

U.  S.  v.  Keyer  (District  Court,  Tennessee). — June  4,  1891,  indictment  found 
for  inducing  to  discriminate;  December  19,  1891,  verdict  of  acquittal. 

U.  S.  v.  Knight  (District  Court,  Illinois). — July  1,  1891,  indictment  found  for 
charging  less  than  tariff  rates;  February  29,  1892,  indictment  quashed. 

U.  S.  v.  Kehlor  (District  Court,  Illinois). — July  1,  1891,  indictment  found  for 
inducing  to  discriminate;  February  29,  1892,  indictment  quashed. 

U.  S.  v.  Knight  (District  Court,  Missouri). — September  7,  1891,  indictment 
found  for  charging  less  than  tariff  rates;  April  23,  1894,  indictment  quashed. 

TJ.  S.  v.  Wyckoff  (District  Court,  Missouri). — October  31,  1891,  indictment 
found  for  charging  less  than  tariff  rates;  February  4,  1895,  indictment  nol. 
prossed. 

U.  S.  v.  Field  (District  Court,  Missouri). — October  31,  1891,  indictment  found 
for  charging  less  than  tariff  rates;  October  29,  1895,  nol.  prossed  as  to  some; 
others  found  not  guilty;  Field  plead  guilty,  fined  $1  and  costs. 

U.  S.  v.  Fowkes  (District  Court,  Missouri). — October  31,  1891,  indictment 
found  for  giving  rebates;  December  14,  1893,  verdict  of  not  guilty  by  direction 
of  court  as  to  all  defendants  except  Fowkes;  January  15,  1894,  indictment  nol. 
prossed  and  Fowkes  discharged. 

U.  S.  v.  Knight  (District  Court,  Missouri). — October  31,  1891,  indictment 
found  for  charging  less  than  tariff  rates;  February  4,  1895,  indictment  nol. 
prossed. 

U.  S.  v.  Crane  (District  Court,  Missouri). — October  31,  1891,  indictment 
found  for  charging  less  than  tariff  rates;  December  15,  1893,  indictment  nol. 
prossed. 

U.  S.  v.  Spriggs  (District  Court,  Illinois). — November  18,  1891,  indictment 
found  for  charging  less  than  tariff  rates;  May  9,  1894,  indictment  dismissed. 

U.  S.  v.  Swift  (District  Court,  Illinois). — November  18,  1891,  indictment  found 
for  inducing  to  discriminate;  November  22,  1892,  indictment  nol.  prossed. 

TJ.  S.  v.  Firmenich  (District  Court,  Illinois). — November  18,  1891,  indictment 
found  for  inducing  to  discriminate;  November  22,  1892,  indictment  nol.  prossed. 

U.  S.  v.  Fell  (District  Court,  Illinois). — May  13,  1892,  indictment  found  for 
giving  rebates;  July  31,  1894,  indictment  nol.  prossed. 

U.  S.  v.  Farrell  (District  Court,  Nebraska). — May  25,  1892,  indictment  found 
for  inducing  to  discriminate;  June  13,  1892,  nol.  prossed  as  to  Sharp  and  ver- 
dict of  not  guilty  as  to  Farrell. 

U.  S.  v.  Sharp  (District  Court,  Nebraska). — May  25,  1892,  indictment  found 
for  inducing  to  discriminate;  June  13,  1892,  verdict  of  guilty;  fined  $25  and 
costs. 

U.  S.  v.  Calder  (District  Court,  Washington). — July  12,  1893,  indictment  found 
for  discrimination  in  sale  of  tickets;  June  27,  1894,  indictment  dismissed. 

U.  S.  v.  Fraser  and  Wight  (District  Court,  Pennsylvania). — October  16,  1894, 
indictment  found  for  giving  rebates;  May  18,  1895,  indictment  nol.  prossed. 

U.  S.  v.  Means  (District  Court,  Pennsylvania). — October  18,  1894,  indictment 


214  JURISDICTION  OP  COURTS 

found  for  carrying  at  less  than  tariff  rates;  May  6,  1895,  plead  nolo  contendere 
and  fined  costs. 

U.  S.  v.  Hanley  &  Keinhart  (District  Court,  Illinois). — October  19,  1894,  in- 
dictment found  for  giving  rebates;  January  6,  1897,  nol.  prossed  as  to  Keinhart; 
January  9,  1897,  verdict  of  not  guilty  as  to  Hanley  (71  Fed.,  672). 

U.  S.  v.  Jenkins  (District  Court,  Illinois). — October  19,  1894,  indictment  found 
for  inducing  to  discriminate;  January  20,  1896,  indictment  quashed. 

U.  S.  v.  Thompson  (District  Court,  Illinois). — October  19,  1894,  indictment 
for  inducing  to  discriminate;  January  20,  1896,  indictment  quashed. 

U.  S.  v.  Morris  (District  Court,  Illinois). — October  29,  1894,  indictment  for 
inducing  to  discriminate;  January  20,  1896,  indictment  quashed. 

"U.  S.  v.  Huntington  (District  Court,  California). — March  22,  1895,  indict- 
ment found  for  issuing  free  passes;  August  14,  1895,  indictment  nol.  prossed. 

U.  S.  v.  Huntington  (District  Court,  California). — March  26,  1895,  indict- 
ment found  for  issuing  free  passes;  August  14,  1895,  indictment  nol.  prossed. 

U.  S.  v.  Eraser  and  Wight  (District  Court,  Pennsylvania).— October  16,  1894, 
indictment  found  for  carrying  at  less  than  tariff  rates;  May  18,  1895,  nol. 
prossed  as  to  Fraser  and  verdict  of  guilty  as  to  Wight,  who  was  fined  $1,000; 
May  24,  1897,  verdict  sustained  by  Supreme  Court  (167  U.  S.,  512). 

U.  8.  v.  Means  (District  Court,  Pennsylvania). — October  18,  1894,  indict- 
ment found  for  giving  rebates;  May  6,  1895,  plead  nolo  contendere  and  fined 
$500. 

U.  S.  v.  Fraser  and  Wight  (District  Court,  Pennsylvania). — October  18,  1894, 
indictment  found  for  giving  rebates;  May  18,  1895,  indictment  nol.  prossed. 

U.  S.  v.  Buerger  (District  Court,  Wisconsin). — February  19,  1896,  indictment 
found  for  false  billing;  February  12,  1897,  indictment  nol.  prossed. 

U.  S.  v.  Judd  and  Watkins  (District  Court,  Missouri). — May  1,  1896,  indict- 
ment found  for  false  billing;  May  12,  1896,  Judd  plead  guilty  and  was  fined 
$350;  October  — ,  1896,  verdict  of  not  guilty  as  to  Watkins. 

U.  S.  v.  Eeid  (District  Court,  Kansas). — September  20,  1896,  indictment 
found  for  false  billing;  April  12-24,  1897,  indictment  nol.  prossed. 

U.  S.  v.  De  Coursey  (District  Court,  New  York). — September  23,  1896,  indict- 
ment found  for  giving  rebates;  September  26,  1899,  indictment  nol.  prossed. 

U.  S.  v.  Eeid  (District  Court,  Kansas). — September  24,  1896,  indictment 
found  for  false  billing;  April  12-24,  1897,  indictment  noL  prossed. 

U.  S.  v.  Dick  and  Blair  (District  Court,  Pennsylvania). — October  22,  1896, 
indictment  found  for  charging  less  than  tariff  rates;  May  2,  1898,  defendants 
plead  nolo  contendere  and  fined  $50  each. 

U.  S.  v.  Thome  and  Sargent   (District  Court,  Louisiana). — January  21,  1897, 

indictment   found  for  departure  from  published  rates;   — ,   1897,  plead 

guilty  and  each  fined  $4,000. 

U.  S.  v.  Stubbs  (District  Court,  Louisiana). — April  — ,  1897,  indictment  found 
for  giving  rebates.  Case  pending. 

(NOTE. — Eleven  other  indictments  were  found  in  the  same  district  against  the 
same  parties  in  June,  1898.) 

U.  S.  v.  Papy  and  Menzies  (District  Court,  Florida). — December  22,  1897, 
indictment  found  for  departure  from  published  rates;  January  26,  1898,  in- 
dictment quashed  as  to  Menzies;  January  26,  1898,  Papy  plead  guilty;  fined 
$350. 

U.  S.  v.  Pennington  and  Pleasants  (District  Court,  Florida). — December  28, 
1897,  indictment  found  for  departure  from  published  rates;  January  17,  1898, 
indictment  quashed  as  to  Pleasants;  January  19,  1898,  Pennington  plead  guilty; 
fined  $350. 


JURISDICTION  OF  COURTS  215 

U.  S.  v.  Price  (District  Court,  Kentucky). — April  19,  1899,  indictment  found 
for  obstructing  administration  of  the  act  to  regulate  commerce;  March  1,  1900, 
plead  guilty  and  fined  $500. 

U.  S.  v.  Belknap  (District  Court,  Texas). — June  5,  1899,  indictment  found  for 
false  billing; ,  1900,  indictment  nol.  pressed. 

U.  S.  v.  Ault  (District  Court,  Texas).— June  — ,  1899,  indictment  found  for 
false  billing;  ,  1899,  Circuit  Court  granted  order  of  removal  from  Ken- 
tucky; October  2,  1900,  Circuit  Court  reversed  by  Circuit  Court  of  Appeals  and 
defendants  discharged. 

U.  S.  v.  Shotter  (District  Court,  Georgia). — December  11,  1899,  indictment 
found  for  false  weighing;  March  9,  1900,  two  other  indictments  consolidated  with 
this  case;  March  9,  1900,  Shotter  plead  guilty  and  was  fined  $1,000;  nol.  pressed 
as  to  each  of  the  other  defendants. 

U.  S.  v.  Price  (District  Court,  Kentucky). — March  1,  1900,  indictment  found 
for  false  billing;  March  1,  1900,  plead  guilty  and  fined  $1,000. 

U.  S.  v.  L.  &  N.  E.  Co.  (District  Court,  Kentucky)  .—March  14,  1902,  indict- 
ment found  for  charging  less  than  established  rates;  October  12,  1906,  indict- 
ment nol.  prossed. 

U.  S.  v.  L.  &  N.  E.  Co.  (District  Court,  Kentucky).— March  14,  1902,  indict- 
ment found  for  charging  less  than  established  rates;  October  12,  1903,  indict- 
ment nol.  prossed. 

U.  S.  v.  I.  C.  E.  Co.  (District  Court,  Tennessee). — May  28,  1902,  indictment 
found  for  pooling;  August  15,  1905,  suit  dismissed. 

U.  S.  v.  Harrahan  (District  Court,  Tennessee). — June  20,  1902,  indictment 
found  for  pooling;  August  15,  1905,  indictment  nol.  prossed. 

U.  S.  v.  W.  &  A.  E.  Co.  (District  Court,  Georgia). — June  20,  1902,  indictment 
found  for  pooling;  July  1,  1905,  indictment  nol.  prossed. 

U.  S.  v.  Capps  (District  Court,  Georgia). — June  20,  1902,  indictment  found 
for  pooling;  July  1,  1905,  indictment  nol.  prossed. 

U.  S.  v.  Whitcomb  (District  Court,  Minnesota). — September  4,  1902,  indict- 
ment found  for  charging  less  than  established  rates;  March  — ,  1903,  indictment 
nol.  prossed. 

The  indictments  under  the  act  to  regulate  commerce,  as  amended, 
are: 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (District  Court,  Western  New  York)  .—August 
24,  1906,  indictment  returned  charging  failure  to  file  schedules  as  required  by 
the  interstate  commerce  act  of  February  4,  1887;  October  9,  1906,  demurrer 
filed;  April  4,  1907,  demurrer  overruled;  June  10,  1907,  trial  commenced — verdict 
of  guilty,  and  defendant  sentenced  to  pay  a  fine  of  $15,000;  sixty  days'  stay  of 
proceedings  granted  (146  Fed.,  298). 

U.  S.  v.  U.  P.  Coal  Co. ;  U.  P.  E.  Co. ;  O.  S.  L.  E.  Co. ;  James  M.  Moore  and 
Everet  Buckingham  (District  Court,  Utah). — December  7,  1906,  indictment  re- 
turned, charging  a  conspiracy  to  violate  and  for  a  violation  of  the  interstate- 
commerce  laws,  involving  the  question  of  undue  and  unreasonable  prejudice  in  the 
shipment  of  coal;  March  4,  1907,  demurrer  filed;  April  1,  1907,  demurrer  over- 
ruled as  to  first  count  and  sustained  as  to  second  count;  November  20,  1907,  case 
dismissed. 

U.  S.  v.  A.,  T.  &  S.  F.  E.  Co.   (District  Court,  Northern  Illinois). — July  10, 


216  JURISDICTION  OP  COURTS 

1907,  indictment  returned  charging  a  violation  of  the  interstate  commerce  laws 
for  granting  and  giving  rebates.    Case  pending. 

U.  S.  v.  A.  Booth  &  Co.  (District  Court,  Northern  Illinois)  .—August  3,  1907, 
indictment  returned  charging  a  violation  of  the  interstate  commerce  laws  for  ac- 
cepting and  receiving  rebates.  Case  pending. 

U.  8.  v.  The  N.  Y.,  C.  &  St.  L.  R.  Co.,  and  L.  V.  R.  Co.  (District  Court, 
Northern  Illinois). — August  3,  1907,  indictment  returned  charging  a  violation  of 
the  interstate  commerce  laws  for  granting  and  giving  rebates.  Case  pending. 

U.  S.  v.  The  N.  Y.,  C.  &  St.  L.  R.  Co.  (District  Court,  Northern  Illinois).— 
August  3,  1907,  indictment  returned  under  the  interstate-commerce  laws  for 
granting  and  giving  rebates.  Case  pending. 

U.  S.  v.  S.  P.  (District  Court,  Northern  California).— September  28,  1907, 
indictment  returned  under  the  interstate  commerce  law  (50  counts)  charging  the 
forwarding  of  50  parcels  of  matting  from  San  Francisco  to  final  destinations 
at  less  than  filed  tariff;  November  20,  1907,  motion  to  quash  filed;  June  26, 

1908,  motion  to  quash  denied.  Case  pending.  -f 

U.  S.  v.  S.  P.  Co.  (District  Court,  Northern  California).— September  28,  1907, 
indictment  returned  under  the  interstate  commerce  law  (50  counts)  charging  the 
forwarding  of  50  parcels  of  matting  from  Kobe  through  San  Francisco  to  points 
in  the  East  at  less  than  filed  rates;  November  20,  1908,  motion  to  quash  filed; 
June  26,  1908,  motion  to  quash  denied.  Case  pending. 

U.  S.  v.  Pacific  Mail  S.  S.  Co.  (District  Court,  Northern  California). — Septem- 
ber 28,  1907,  indictment  returned  under  the  interstate  commerce  law  (8  counts) 
charging  the  shipping  of  matting  at  less  than  legal  tariff  from  Kobe  through 
San  Francisco  to  points  in  the  East;  November  20,  1907,  motion  to  quash  filed; 
June  26,  1908,  motion  to  quash  denied.  Case  pending. 

IT.  S.  v.  Pacific  Mail  S.  S.  Co.  (District  Court,  Northern  California). — Septem- 
ber 28,  1907,  indictment  returned  under  the  interstate  commerce  law  (8  counts) 
charging  the  shipping  of  matting  at  less  than  filed  tariff  from  Kobe  through 
San  Francisco  to  points  in  the  East;  November  20,  1907,  motion  to  quash  filed; 
June  26,  1908,  motion  to  quash  denied.  Case  pending. 

U.  S.  v.  S.  P.  Co.  (District  Court,  Northern  California). — September  28,  1907, 
indictment  returned  under  the  interstate  commerce  law  (8  counts)  charging 
the  forwarding  of  matting  from  Kobe  to  San  Francisco  at  less  than  the  filed 
tariff;  November  20,  1907,  motion  to  quash  filed;  June  26,  1908,  motion  to 
quash  denied.  Case  pending. 

U.  S.  v.  Pacific  Mail  S.  S.  Co.  (District  Court,  Northern  California). — October 
7,  1907,  indictment  returned  under  the  interstate  commerce  law  (8  counts) 
charging  the  shipping  of  matting  from  Kobe,  Japan,  to  final  destination  in  the 
United  States  at  less  than  published  rate;  November  20,  1907,  motion  to  quash 
filed;  June  26,  1908,  motion  to  quash  denied.  Case  pending. 

U.  S.  v.  S.  P.  Co.  (District  Court,  Northern  California).— October  7,  1907, 
indictment  returned  under  the  interstate  commerce  law  (8  counts  charging  the 
shipping  of  matting  from  San  Francisco  to  destination  at  less  than  published 
tariff;  November  20,  1907,  motion  to  quash  filed;  June  26,  1908,  motion  to 
quash  denied.  Case  Pending. 

U.  S.  v.  Pacific  Mail  S.  S.  Co.  (District  Court,  Northern  California). — October 
11,  1907,  indictment  returned  under  the  interstate  commerce  law  (4  counts) 
charging  the  shipping  of  matting  from  Kobe,  Japan,  to  final  destination  in  the 
United  States  at  less  than  published  rate;  November  20,  1907,  motion  to  quash 
filed;  June  26,  1908,  motion  to  quash  denied.  Case  pending. 

U.  S.  v.  Pacific  Mail  S.  S.  Co.  (District  Court,  Northern  California).— October 
11,  1907,  indictment  returned  under  the  interstate  commerce  law  (4  counts) 


JURISDICTION  OF  COURTS  217 

charging  the  shipping  of  matting  from  Kobe,  Japan,  to  final  destination  in  the 
United  States  at  less  than  published  rate;  November  20,  1907,  motion  to  quash 
filed;  June  26,  1908,  motion  to  quash  denied.  Case  pending. 

U.  8.  v.  S.  P.  Co.  (District  Court,  Northern  California).— October  11,  1907, 
indictment  returned  under  the  interstate  commerce  law  (1  count)  charging  the 
shipping  of  one  parcel  of  matting  from  Kobe,  Japan,  to  final  destination 
in  the  United  States  at  less  than  published  rate;  November  20,  1907,  motion  to 
quash  filed;  June  26,  1908,  motion  to  quash  denied.  Case  pending. 

U.  S.  v.  S.  P.  Co.  (District  Court,  Northern  California).— October  11,  1907, 
indictment  returned  under  the  interstate  commerce  law  (1  count)  charging  the 
shipping  of  one  parcel  of  matting  from  Kobe,  Japan,  to  final  destination 
in  the  United  States  at  less  than  published  rate;  November  20,  1907,  motion  to 
quash  filed;  June  26,  1908,  motion  to  quash  denied.  Case  pending. 

U.  S.  v.  S.  P.  Co.  (District  Court,  Northern  California).— October  11,  1907, 
indictment  returned  under  the  interstate  commerce  law  (1  count)  charging  the 
shipping  of  one  parcel  of  matting  from  San  Francisco,  to  final  destination 
at  less  than  published  rate;  November  20,  1907,  motion  to  quash  filed;  June  26, 
1908,  motion  to  quash  denied.  Case  pending. 

U.  S.  v.  Standard  Oil  Co.    (District  Court,  Western  Tennessee). — October  16, 

1906,  indictment  returned  under  the  interstate  commerce  act  of  1887,  as  amended 
for  accepting  and  receiving  rebates;  August  7,  1907,  demurrer  filed;  October  28, 

1907,  demurrer  overruled;  November  14,  1907,  plea  of  not  guilty.     Case  pending. 
U.   S.  v.   Harry   Gore  and   Max  Eabinovitz    (District    Court,   Northern   West 

Virginia). — January  21,  1908,  indictment  returned  under  the  interstate  com- 
merce law  for  false  billing;  June  9,  1908,  plea  of  guilty  and  each  sentenced  to 
pay  fine  of  $50;  total,  $100. 

U.  S.  v.  L.  M.  Neiburg  (District  Court,  Vermont). — February  29,  1908,  in- 
dictment returned  under  the  interstate  commerce  law  (75  counts)  for  false 
billing;  May  19,  1908,  plea  of  guilty  and  sentenced  to  pay  a  fine  of  $250. 

U.  S.  v.  Max  Agel  and  Simon  Levin  (District  Court,  Vermont). — February  29, 

1908,  indictment  returned  under  the  interstate  commerce  law    (18  counts)    for 
false  billing;  May  26,  1908,  plea  of  guilty;  June  26,  1908,  each  defendant  sen- 
tenced to  pay  a  fine  of  $25,  total  $50. 

U.  S.  v.  St.  L.  &  S.  F.  E.  Co.  (District  Court,  Eastern  Missouri).— March  3, 
1908,  indictment  returned  (13  counts)  charging  a  violation  of  the  interstate 
commerce  law  as  amended  by  the  Elkins'  law  in  offering,  granting,  and  giv- 
ing rebates;  March  10,  1908,  plea  of  guilty;  sentenced  to  pay  fine  of  $13,000. 

U.  S.  v.  Chapman  &  Dewey  Lumber  Co.  (District  Court,  Eastern  Missouri). — 
March  3,  1908,  indictment  returned  (13  counts)  charging  a  violation  of  the  in- 
terstate commerce  law  as  amended  by  the  Elkins'  law  in  accepting  and  receiving 
rebates;  March  30,  1908,  plea  of  guilty  and  fine  of  $13,000  imposed. 

U.  S.  v.  I.  C.  E.  Co.  (Circuit  Court,  Eastern  Louisiana). — May  16,  1908,  in- 
dictment returned  under  the  interstate  commerce  law  as  amended  by  the  act  of 
June  29,  1906,  for  granting  and  giving  rebates.  Case  pending. 

U.  S.  v.  Y.  &  M.  V.  E.  Co.  (Circuit  Court,  Eastern  Louisiana).— May  18,  1908, 
indictment  returned  charging  a  violation  of  the  interstate  commerce  law  as 
amended  by  the  act  of  June  29,  1906,  in  granting  and  giving  rebates.  Case 
pending. 

U.  S.  v.  S.  P.  Co.  (District  Court,  Southern  California). — June  1,  1908,  in- 
dictment returned  under  the  interstate  commerce  law  for  granting  and  giving 
rebates.  Case  pending. 

U.  S.  v.  S.  P.  Co.    (District  Court,  Southern  California). — June  1,  1908,  in- 


218  JURISDICTION  OP  COURTS 

dictment  returned  under  the  interstate  commerce  law  for  granting  and  giving  re- 
bates. Case  pending. 

U.  S.  v.  S.  P.  Co.  (District  Court,  Southern  California). — June  1,  1908,  in- 
dictment returned  under  the  interstate  commerce  law  for  granting  and  giving  re- 
bates. Case  pending. 

U.  S.  v.  Warner  Moore  and  Thomas  L.  Moore,  partners  trading  as  Warner 
Moore  &  Co.  (Circuit  Court,  Eastern  Virginia). — June  12,  1908,  indictment  re- 
turned (3  counts)  under  the  interstate  commerce  law  for  false  billing.  Case 
pending. 

U.  8.  v.  I.  T.  K.  Co.  (District  Court,  Southern  Illinois),  September  12,  1908, 
indictment  returned,  charging  failure  to  file  schedules  in  violation  of  the  inter- 
state commerce  act  of  June  29,  1906.  Case  pending. 

The  indictments  alleging  a  violation  of  the  interstate  commerce  and 
Elkins'  laws  are: 

U.  S.  v.  Zorn  (District  Court,  Kentucky). — October  24,  1905,  indictment  found 
for  receiving  rebates  under  the  act  to  regulate  commerce  and  the  Elkins'  law; 
January  17,  1906,  defendants  plead  guilty  and  each  was  fined  $1,025. 

U.  S.  v.  G.  N.  E.  Co.  (District  Court,  Pennsylvania). — December  11,  1905, 
indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  granting 
rebates  on  iron  pipe  from  points  in  New  Jersey  and  Pennsylvania  to  Winnipeg, 
Canada.  Case  pending. 

U.  S.  v.  Campbell  (District  Court,  Pennsylvania). — December  11,  1905,  indict- 
ment found  under  the  interstate  commerce  and  Elkins'  laws  for  granting  rebates 
on  iron  pipe  from  points  in  New  Jersey  and  Pennsylvania  to  Winnipeg,  Canada. 
Case  pending. 

U.  S.  v.  Diver  (District  Court,  Pennsylvania). — December  11,  1905,  indict- 
ment found  under  the  interstate  commerce  and  Elkins'  laws  for  granting  rebates 
on  essence  for  coffee  from  Philadelphia  to  Winnipeg,  Canada.  Case  pending. 

U.  S.  v.  Mutual  Transit  Co.  (District  Court,  Pennsylvania). — December  11, 
1905,  indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for 
granting  rebates  on  essence  for  coffee  from  Philadelphia  to  Minneapolis.  Case 
pending. 

U.  S.  v.  Diver  (District  Court,  Pennsylvania). — December  11,  1905,  indict- 
ment found  under  the  interstate  commerce  and  Elkins'  laws  for  granting  rebates 
on  essence  for  coffee  from  Philadelphia  to  Minneapolis.  Case  pending. 

U.  S.  v.  Mutual  Transit  Co.  (District  Court,  Pennsylvania). — December  11, 
1905,  indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for 
granting  rebates  on  essence  for  coffee  from  Philadelphia  to  Winnipeg,  Canada. 
Case  pending. 

U.  S.  v.  Lake  (District  Court,  Pennsylvania). — December  11,  1905,  indictment 
found  under  the  interstate  commerce  and  Elkins'  laws  for  granting  rebates 
on  iron  pipe  from  points  in  New  Jersey  and  Pennsylvania  to  Winnipeg,  Canada. 
Case  pending. 

U.  S.  v.  E.  D.  Wood  &  Co.  (District  Court,  Pennsylvania).— December  11, 
1905,  indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  re- 
ceiving rebates  on  iron  pipe  from  points  in  New  Jersey  and  Pennsylvania  to 
Winnipeg,  Canada;  April  2,  1906,  verdict  of  not  guilty  as  to  Walter  Wood  and 
Stuart  Wood  (145  Fed.,  406). 

U.  S.  v.  Swift  &  Co.  (District  Court,  Missouri). — December  15,  1905,  indict- 
ment found  under  the  interstate  commerce  and  Elkins '  laws  for  receiving  rebates 
on  export  shipments  of  packing-house  products;  June  12,  1906,  defendants  found 
guilty;  June  22,  1906,  fined  $15,000;  appeal  to  Circuit  Court  of  Appeals  for  the 


JURISDICTION  OP  COURTS  219 

Eighth  Circuit;  April  29,  1907,  Circuit  Court  of  Appeals  affirmed  judgment  of 
the  lower  court;  October  21,  1907,  writ  of  certiorari  allowed  to  the  Supreme 
Court  of  the  United  States;  March  16,  1908,  judgment  affirmed  by  the  Supreme 
Court  (153  Fed.,  1;  82  C.  C.  A.,  135;  209  IT.  S.,  56). 

U.  S.  v.  Crosby  (District  Court,  Missouri). — December  15,  1905,  indictment 
found  under  the  interstate  commerce  and  Elkins'  laws  for  conspiracy  to  obtain 
rebates  on  shipments  of  general  merchandise  from  Kansas  City  to  the  East; 
May  25,  1906,  court  instructed  jury  to  bring  in  verdict  of  acquittal  for  the  de- 
fendants. 

U.  S.  v.  Armour  Packing  Co.  (District  Court,  Missouri). — December  15,  1905, 
indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  receiving 
rebates  on  export  shipments  of  packing-house  products;  June  12,  1906,  found 
guilty;  June  22,  1906,  fined  $15,000;  appeal  to  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit;  April  29,  1907,  Circuit  Court  of  Appeals  affirmed  judgment  of 
the  lower  court;  October  21,  1907,  writ  of  certiorari  allowed  to  the  Supreme 
Court  of  the  United  States;  March  16,  1908,  judgment  affirmed  by  the  Supreme 
Court  (153  Fed.,  1;  82  C.  C.  A.,  135;  209  U.  S.,  56). 

U.  S.  v.  Cudahy  Packing  Co.  (District  Court,  Missouri). — December  15,  1905, 
indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  receiving 
rebates  on  export  shipments  of  packing-house  products;  June  12,  1906,  found 
guilty;  June  22,  1906,  fined  $15,000;  appeal  to  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit;  April  29,  1907,  Circuit  Court  of  Appeals  affirmed  judgment 
of  the  lower  court;  October  21,  1907,  writ  of  certiorari  allowed  to  the  Supreme 
Court  of  the  United  States;  March  16,  1908,  judgment  affirmed  by  Supreme 
Court  (153  Fed.,  1;  82  C.  C.  A.,  135;  209  U.  S.,  56). 

U.   S.  v.  C.,  M.  &  St.  P.  E.   Co.    (District  Court,   Missouri). — December  15, 

1905,  indictment   found   under   the   interstate   commerce    and    Elkins'   laws   for 
granting  rebates  on  export  flour;   June  11,  1906,  indictment  nol.  pressed. 

U.  S.  v.  Nelson  Morris  &  Co.  (District  Court,  Missouri). — December  15,  1905, 
indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  receiving 
rebates  on  shipments  of  lard  from  Kansas  City  to  New  York  City  and  Hoboken 
for  export;  June  12,  1906,  found  guilty;  June  22,  1906,  fined  $15,000;  appeal  to 
the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit;  April  29,  1907,  Circuit 
Court  of  Appeals  affirmed  judgment  of  the  lower  court;  October  21,  1907,  writ 
of  certiorari  allowed  to  the  Supreme  Court  of  the  United  States;  March  16,  1908, 
judgment  affirmed  by  the  Supreme  Court  (153  Fed.,  1;  82  C.  C.  A.,  135;  209  U. 
S.,  56). 

U.  S.  v.  C.  &  A.  E.  Co.  (District  Court,  Missouri). — December  15,  1905,  indict- 
ment found  under  the  interstate  commerce  and  Elkins'  laws  for  granting  rebates 
on  export  flour;  June  11,  1906,  indictment  nol.  pressed. 

U.  S.  v.  C.,  B.  &  Q.  E.  Co.  (District  Court,  Illinois). — December  29,  1905, 
indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  granting 
rebates  on  shipments  of  tin  plate  from  points  in  Pennsylvania,  Ohio,  and  other 
States  to  Vancouver,  British  Columbia;  April  20,  1906,  jury  brought  in  a  ver- 
dict of  guilty,  upon  an  agreed  statement  of  facts,  and  the  judge  sentenced 
Miller  and  Bernham  to  pay  a  fine  of  $10,000  each,  and  the  C.,  B.  &  Q.,  $40,000. 

U.  S.  v.  S.  &  C.  E.  Co.  (District  Court,  Virginia)  .—January  10,  1906,  in- 
dictment found  under  the  interstate  commerce  and  Elkins'  laws  for  granting 
rebates  on  shipments  of  logs  from  Center  Hill,  N.  C.,  to  Suffolk,  Va.  Case 
pending. 

U.    S.    v.    Gay   Manufacturing    Co.    (District    Court,   Virginia). — January    10, 

1906,  indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  re- 


220  JURISDICTION  OP  COURTS 

ceiving  rebates  on  shipments  of  logs  from  Center  Hill,  N.  C.,  to  Suffolk,  Va. 
Case  pending. 

U.  S.  v.  Bosley  (District  Court,  Virginia). — January  10,  1906,  indictment 
found  under  the  interstate  commerce  and  Elkins'  laws  for  granting  rebates  on 
shipments  of  logs  from  Center  Hill,  N.  C.,  to  Suffolk,  Va.  Case  pending. 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (District  Court,  New  York)  .—January  10, 
1906,  indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for 
granting  rebates  on  general  electric  supplies  from  Schenectady,  N.  Y.,  to  points 
outside  of  New  York;  April  2,  1907,  mistrial;  June  term,  1907,  continued  on 
account  of  absence  of  material  witness  for  Government;  December  4-19,  1907, 
jury  trial;  disagreement.  Case  pending. 

U.  S.  v.  D.  &  H.  Co.  (District  Court,  New  York). — January  10,  1906,  indict- 
ment found  under  the  interstate  commerce  and  Elkins'  laws  for  granting  rebates 
on  general  electric  supplies  from  Schenectady,  N.  Y.,  to  points  outside  of  New 
York.  Case  pending. 

U.  S.  v.  The  N.  Y.  C.  &  H.  B.  B.  Co.  (District  Court,  Southern  New  York). — 
March  24,  1906,  indictment  returned  under  the  interstate  commerce  and  Elkins' 
laws  for  granting  rebates;  May  22,  1906,  demurrer  filed;  July  6,  1906,  demurrer 
overruled;  September  17,  1906,  plea  of  not  guilty;  November  14,  1906,  trial  com- 
menced; November  15,  1906,  trial  concluded;  verdict  of  guilty.  November  22, 
1906,  defendant  sentenced  to  pay  fine  of  $18,000;  writ  of  error  allowed  to  the 
Supreme  Court. 

U.  S.  v.  American  Sugar  Eefining  Co.  (District  Court,  Southern  New  York). — 
March  24,  1906,  indictment  returned  under  the  interstate  commerce  and  Elkins' 
laws  for  receiving  rebates  on  shipments  of  sugar  over  New  York  Central  and 
Hudson  Eiver  Railroad  from  New  York  to  Cleveland;  November  16,  1906,  jury 
trial;  verdict  guilty;  November  27,  1906,  defendant  sentenced  to  pay  fine  of 
$18,000. 

U.  S.  v.  The  N.  Y.  C.  &  H.  E.  E.  Co.  and  Nathan  Guilford  (District  Court, 
Southern  New  York). — May  4,  1906,  indictment  returned  under  the  interstate 
commerce  and  Elkins'  laws  for  offering,  granting,  and  giving  rebates;  May  22, 
1906,  demurrer  filed;  July  6,  1906,  demurrer  overruled;  September  17,  1906, 
plea  of  not  guilty;  April  7,  1908,  nolle  prosequi  entered  as  to  Nathan  Guilford. 
Case  pending. 

U.  S.  v.  American  Sugar  Eefining  Co.,  American  Sugar  Eefining  Co.  of  New 
York,  C.  G.  Edgar,  and  E.  Earle  (District  Court,  Southern  New  York).— May  4, 
1906,  indictment  returned  under  the  interstate  commerce  and  Elkins'  laws  for 
soliciting  and  receiving  rebates  on  shipments  of  sugar  from  New  York  to 
Detroit  over  New  York  Central  and  Hudson  Eiver  Eailroad;  demurrers  filed  and 
overruled;  December  10,  1906,  defendants  Edgar  and  Earle  plead  guilty  and  sen- 
tenced to  pay  a  fine  of  $1,000  each;  December  11,  1906,  American  Sugar  Eefining 
Company  plead  guilty  and  was  sentenced  to  pay  a  fine  of  $10,000.  Nol.  pros, 
entered  as  to  American  Sugar  Eefining  Company  of  New  York. 

U.  S.  v.  Colorado  Fuel  &  Iron  Co.  (District  Court,  New  Mexico). — June  1, 
1906,  indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  re- 
ceiving rebates  on  shipments  of  coal  from  Starville,  Colo.,  to  Deming,  N.  Mex. ; 
July  12,  1906,  case  submitted  on  agreed  statement  of  facts  and  fine  of  $15,000 
imposed. 

U.  S.  v.  A.,  T.  &  S.  F.  E.  Co.  (District  Court,  New  Mexico)  .—June  1,  1906, 
indictment  found  under  the  interstate  commerce  and  Elkins'  laws  for  granting 
rebates  on  shipments  of  coal  from  Starville,  Col.,  to  Deming,  N.  Mex. ;  July 
12,  1906,  case  submitted  on  agreed  statement  of  facts  and  a  fine  of  $15,000 
imposed. 


JURISDICTION  OP  COURTS  221 

U.  S.  v.  A.  Patriarche  and  Stearns  Salt  &  Lumber  Co.  (District  Court,  Western 
Michigan). — December  17,  1907,  indictment  returned  (111  counts)  charging  a 
violation  of  the  act  of  June  29,  1906;  the  former  for  offering,  granting,  and 
giving  rebates,  the  latter  for  accepting  and  receiving  rebates;  March  25,  1908, 
indictment  quashed  on  ground  that  two  defendants  could  not  be  joined  in  one 
indictment  for  different  offenses. 

U.  S.  v.  Tom  Williams  (District  Court,  Northern  Alabama).— March  7,  1908, 
information  filed  charging  a  violation  of  the  act  of  June  29,  1906,  with  refer- 
ence to  misuse  of  free  pass;  March  7,  1908,  plea  of  guilty;  fined  $100. 

U.  S.  v.  St.  L.,  I.  M.  &  S.  E.  Co.,  M.  P.  E.  Co.,  and  Wilbur  C.  Stith  (District 
Court,  Eastern  Arkansas). — April  14,  1908,  indictment  returned  (58  counts) 
charging  a  violation  of  the  Elkins  law  and  the  act  of  June  29,  1906,  in 
offering,  granting,  and  giving  rebates.  Case  pending. 

U.  S.  v.  T.  H.  Bunch  (District  Court,  Eastern  Arkansas). — April  14,  1908,  in- 
dictment returned  (58  counts)  charging  a  violation  of  the  Elkins  law  and  the 
act  of  June  29,  1906,  in  accepting  and  receiving  rebates.  Case  pending. 

TL  S.  v.  L.  J.  Clark  (District  Court,  South  Carolina).— April  21,  1908,  in- 
formation filed  (2  counts)  charging  a  violation  of  the  act  of  June  29,  1906,  with 
reference  to  misuse  of  free  pass;  plea  of  guilty  and  sentenced  to  pay  fine  of 
$100. 

TJ.  S.  v.  M.,  K  &  T.  E.  Co.  (District  Court,  Western  Missouri). — May  5,  1908, 
indictment  returned  (19  counts)  under  the  act  of  June  29,  1906,  charging  depar- 
ture from  published  tariff  in  shipment  of  grain;  May  26,  1908,  plea  of  not 
guilty.  Case  pending. 

U.  S.  v.  Nick  Nistas  (District  Court,  Western  Missouri). — May  9,  1908,  in- 
dictment returned  charging  a  violation*  of  the  act  of  June  29,  1906,  with  refer- 
ence to  misuse  of  free  pass;  May  12,  1908,  plea  of  not  guilty.  Case  pending. 

U.  S.  v.  C.  &  O.  E.  Co.  (Circuit  Court,  Eastern  Virginia).— June  9,  1908,  in- 
dictment returned  (9  counts)  charging  a  violation  of  the  Elkins  law  and  the 
act  of  June  29,  1906,  in  granting  and  giving  rebates.  Case  pending. 

U.  S.  v.  William  E.  Johnston  (Circuit  Court,  Eastern  Virginia). — June  9,  1908, 
indictment  returned  (9  counts)  charging  a  violation  of  the  Elkins  law  and  the 
act  of  June  29,  1906,  in  accepting  and  receiving  rebates.  Case  pending. 

U.  S.  v.  Alexander  P.  Gilbert  (Circuit  Court,  Eastern  Virginia). — June  9, 
1908,  indictment  returned  (9  counts)  charging  a  violation  of  the  act  of  June 
29,  1906,  in  granting  and  giving  rebates.  Case  pending. 

U.  S.  v.  C.  &  O.  E.  Co.  (Circuit  Court,  Eastern  Virginia) .—June  12,  1908,  in- 
dictment returned  (4  counts)  charging  a  violation  of  the  Elkins  law  and  the 
act  of  June  29,  1906,  in  granting  and  giving  rebates.  Case  pending. 

U.  S.  v.  Illinois  Glass  Company  and  I.  T.  E.  Co.  (District  Court,  Southern 
Illinois). — September  12,  1908,  indictment  returned  charging  a  violation  of  the 
act  of  June  29,  1906,  in  accepting  and  receiving  rebates.  Case  pending. 

The  indictments  under  the  Elkins  law  are : 

U.  S.  v.  C.  &  A.  E.  Co.,  John  M.  Faithorn,  and  Fred  A.  Wann  (Northern 
District  Illinois). — December  13,  1905,  indictment  returned  under  the  Elkins 
law  for  granting  and  giving  rebates  on  freight;  July  6,  1906,  jury  trial;  verdict 
of  guilty;  July  11,  1906,  defendant  corporation  fined  $40,000;  individual  de- 
fendants fined  $10,000  each;  appeal  to  the  United  States  Circuit  Court  of  Ap- 
peals. April  16,  1907,  judgment  affirmed  by  Circuit  Court  of  Appeals;  writ  of 
certiorari  allowed  to  Supreme  Court. 

U.  S.  v.  C.,  B.  &  Q.  E.  Co.  (District  Court,  Missouri).— December  15,  1905,  in- 
dictment found  under  the  Elkins  law  for  granting  rebates  on  export  traffic  from 


222  JURISDICTION  OP  COURTS 

Kansas  City  to  Liverpool  via  New  York  City  and  Hoboken;  June  13,  1906,  ver- 
dict of  guilty;  June  29,  1906,  fined  $15,000;  appeal  to  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit;  November  8,  1907,  judgment  affirmed  by  the  Circuit  Court 
of  Appeals;  writ  of  certiorari  allowed  to  Supreme  Court;  March  16,  1908,  judg- 
ment affirmed  (157  Fed.,  830;  209  U.  S.,  90). 

U.  S.  v.  C.  &  A.  E.  Co.,  John  M.  Faithorn,  and  Fred  A.  Wann  (District  Court, 
Western  Missouri). — December  15,  1905,  indictment  returned  charging  a  vio- 
lation of  the  act  of  February  4,  1887,  as  amended  by  the  Elkins  law  for  offering, 
granting,  and  giving  rebates  to  Schwartzchild  &  Sulsberger  Company.  July  3, 
1908,  case  dismissed. 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.,  Nathan  Guilford,  and  Fred  L.  Pomeroy  (Circuit 
Court,  Southern  New  York). — May  4,  1906,  indictment  returned  charging  a  vio- 
lation of  Elkins  law  in  giving  and  granting  rebates  and  concessions;  demurrers 
filed  and  overruled;  October  15-17,  trial  and  verdict  of  guilty  on  certain  counts 
of  indictment;  October  19,  Pomeroy  sentenced  to  pay  fine  of  $6,000;  New  York 
Central  and  Hudson  Eiver  Eailroad  Company  sentenced  to  pay  fine  of  $108,000; 
appeal  to  the  Supreme  Court  of  the  United  States;  case  against  Guilford  pending; 
April  7,  1908,  nolle  prosequi  entered  as  to  Nathan  Guilford. 

U.  S.  v.  American  Sugar  Eefining  Co.  (District  Court,  Southern  New  York). — 
May  4,  1906,  indictment  returned  under  the  interstate  commerce  act  and  Elkins 
law  for  soliciting  and  receiving  rebates  on  shipments  of  sugar  from  New  York 
to  Detroit  over  the  New  York  Central  and  Hudson  Eiver  Eailroad;  defendants 
plead  not  guilty;  case  dismissed. 

U.  S.  v.  American  Sugar  Eefining  Co.  and  American  Sugar  Eefining  Co.  of 
New  York  (Circuit  Court,  Southern  New  York). — July  27,  1906,  indictment  re- 
turned charging  these  two  companies  with 'soliciting,  accepting,  and  receiving  re- 
bates in  violation  of  the  Elkins  law;  December  11,  1906,  American  Sugar  Eefin- 
ing Company  pleads  guilty  to  first  count  in  indictment;  nol.  pros,  as  to  Ameri- 
can Sugar  Eefining  Company  of  New  York;  defendant  American  Sugar  Eefin- 
ing Company  sentenced  to  pay  fine  of  $10,000. 

U.  S.  v.  Western  Transit  Co.  (Circuit  Court,  Southern  New  York). — July  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins'  law  in  giving  and 
granting  rebates;  October  12,  1906,  plea  of  not  guilty,  with  leave  to  withdraw; 
October  26,  1906,  demurrer  filed;  June  6,  1906,  demurrer  withdrawn  and  indict- 
ment dismissed  by  consent  of  United  States  attorney. 

U.  S.  v.  American  Sugar  Eefining  Co.  and  American  Sugar  Eefining  Co.  of 
New  York  (Circuit  Court,  Southern  New  York). — August  10,  1906,  indictment 
returned  charging  a  violation  of  the  Elkins  law  in  soliciting,  accepting,  and  re- 
ceiving rebates  from  the  Northern  Steamship  Company;  December  11,  1906, 
American  Sugar  Eefining  Company  pleads  guilty  to  first  count  of  indictment 
and  nol.  pros,  entered  as  to  second  count;  nol.  pros,  entered  as  to  American 
Sugar  Eefining  Company  of  New  York;  December  11,  1906,  defendant  American 
Sugar  Eefining  Company  sentenced  to  pay  a  fine  of  $10,000. 

U.  S.  v.  Brooklyn  Cooperage  Co.  (Circuit  Court,  Southern  New  York). — August 
10,  1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  soliciting, 
accepting,  and  receiving  rebates;  December  11,  1906,  plea  of  guilty  entered  to 
seven  counts  of  the  indictment  and  defendant  sentenced  to  pay  fine  aggregating 
$70,000. 

U.  S.  v.  D.,  L.  &  W.  E.  Co.  (Circuit  Court,  Southern  New  York).— August  10, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  offering, 
granting,  and  giving  rebates;  October  10,  1906,  plea  of  not  guilty  with  leave  to 
withdraw;  November  9,  1906,  demurrer  filed;  February  15,  1907,  demurrer  over- 


JURISDICTION  OF  COURTS  223 

ruled;  March  11,  1907,  plea  of  not  guilty;  March  12,  1907,  jury  trial— disagree- 
ment. Case  pending. 

IT.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (Circuit  Court,  Southern  New  York). — 
August  10,  1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in 
offering,  granting,  and  giving  rebates;  October  26,  1906,  demurrer  filed;  Decem- 
ber 3,  1907,  demurrer  sustained;  December  13,  1907,  motion  made  for  reargu- 
ment  on  demurrer,  which  was  granted,  and  demurrer  reargued,  but  court  ad- 
hered to  decision  filed;  writ  of  error  allowed  to  Supreme  Court. 

U.  S.  v.  American  Sugar  Eefining  Co.,  and  American  Sugar  Eefining  Co.  of 
New  York,  C.  Goodlow  Edgar,  and  Edwin  Earle  (Circuit  Court,  Southern  New 
York). — August  10,  1906,  indictment  returned  charging  a  violation  of  the 
Elkins  law  in  soliciting,  accepting,  and  receiving  rebates;  December  10,  1906, 
defendants  Edgar  and  Earle  plead  guilty  to  five  counts  of  the  indictment,  and 
fines  imposed  aggregating  $10,000;  December  11,  1906,  defendant,  American 
Sugar  Eefining  Company,  pleads  guilty;  nol.  pros,  as  to  American  Sugar  Eefining 
Company  of  New  York.  American  Sugar  Eefining  Company  sentenced  to  pay 
fine  aggregating  $50,000. 

U.  S.  v.  Northern  Steamship  Co.  (Circuit  Court,  Southern  New  York). — August 
10,  1906,  indictment  returned  under  the  Elkins  law  for  offering,  granting,  and 
giving  rebates;  October  18,  1906,  plea  of  not  guilty,  with  leave  to  withdraw; 
April  7,  1908,  indictment  nol.  pressed. 

U.  S.  v.  Standard  OU  Co.  of  New  York  (District  Court,  Western  New  York).— 
August  24,  1906,  indictment  returned  charging  violations  of  the  Elkins  law  in  re- 
ceiving rebates;  October  9,  1906,  demurrer  filed;  March  29,  1907,  demurrer  over- 
ruled. Case  pending. 

II.  S.  v.  Vacuum  Oil  Co.  (District  Court,  Western  New  York). — August  24, 
1906,  indictment  returned  under  the  Elkins  law  for  accepting  and  receiving  re- 
bates; October  9,  1906,  demurrer  filed;  March  29,  1907,  demurrer  overruled;  June 
1,  1908,  indictment  nol.  pressed. 

U.  S.  v.  Standard  Oil  Co.  of  New  York  (District  Court,  Western  New  York). — 
August  24,  1906,  indictment  returned  under  the  Elkins  law  for  accepting  and 
receiving  rebates;  October  9,  1906,  demurrer  filed;  March  29,  1907,  demurrer 
overruled.  Case  pending. 

U.  S.  v.  P.  E.  Co.  (District  Court,  Western  New  York)  .—August  24,  1906,  in- 
dictment returned  under  the  Elkins  law  for  granting  and  giving  rebates;  October 
10,  1906,  demurrer  filed;  April  4,  1907,  demurrer  overruled.  Case  pending. 

U.  S.  v.  Standard  Oil  Co.  (District  Court,  Northern  Illinois). — August  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  accepting 
rebates;  November  10,  1906,  demurrer  filed;  January  3,  1907,  demurrer  over- 
ruled; February  15,  1907,  plea  of  not  guilty.  Case  pending. 

U.  S.  v.  Standard  Oil  Co.  (District  Court,  Northern  Illinois). — August  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  accepting 
rebates;  November  10,  1906,  demurrer  filed;  January  3,  1907,  demurrer  sus- 
tained. 

U.  S.  v.  Standard  Oil  Co.  (District  Court,  Northern  Illinois). — August  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  accepting 
rebates;  November  10,  1906,  demurrer  filed;  January  3,  1907,  demurrer  over- 
ruled; February  15,  1907,  plea  of  not  guilty.  Case  pending. 

U.  S.  v.  Standard  Oil  Co.  (District  Court,  Northern  Illinois).— August  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  accepting 
rebates;  November  10,  1906,  demurrer  filed;  January  3,  1907,  demurrer  over- 
ruled; February  15,  1907,  plea  of  not  guilty.  Case  pending. 

U.  S.  v.   Standard  Oil  Co.    (District   Court,  Northern   Illinois).— August   27, 


224  JURISDICTION  OF  COURTS 

1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  accepting 
rebates;  November  10,  1906,  demurrer  filed;  January  3,  1907,  demurrer  over- 
ruled; February  15,  1907,  plea  of  not  guilty.  Case  pending. 

U.  8.  v.  Standard  Oil  Co.  (District  Court,  Northern  Illinois) .—August  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  accepting 
rebates;  November  10,  1906,  demurrer  filed;  January  3,  1907,  demurrer  over- 
ruled; February  15,  1907,  plea  of  not  guilty.  Case  pending. 

U.  S.  v.  Standard  Oil  Co.  (District  Court,  Northern  Illinois) .—August  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  receiving 
rebates.  November  10,  1906,  demurrer  filed.  January  3,  1907,  demurrer  over- 
ruled; March  4  to  April  12,  1907,  trial;  April  13,  1907,  verdict  of  guilty;  August 
3,  1907,  sentenced  to  pay  fine  of  $29,240,000;  appeal  to  Circuit  Court  of  Ap- 
peals for  the  Seventh  Circuit;  July  22,  1908,  Circuit  Court  of  Appeals  reversed 
district  court  with  directions  to  grant  a  new  trial;  January  4,  1909,  Supreme 
Court  denied  application  for  writ  of  certiorari.  Case  pending. 

TJ.  S.  v.  Standard  Oil  Co.  (District  Court,  Northern  Illinois).— August  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  receiving 
rebates;  November  10,  1906,  demurrer  filed;  January  3,  1907,  demurrer  sus- 
tained. 

U.  S.  v.  Standard  Oil  Co.  (District  Court,  Northern  Illinois). — August  27, 
1906,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  receiving 
rebates.  November  10,  1906,  demurrer  filed.  January  3,  1907,  demurrer  over- 
ruled; February  15,  1907,  plea  of  not  guilty.  Case  pending. 

U.   S.  v.   Standard  Oil   Co.    (District   Court,   Northern   Illinois). — August   27, 

1906,  indictment  returned  under  the  Elkins  law  for  accepting  rebates.     Novem- 
ber 10,  1906,  demurrer  filed;  January  3,  1907,  demurrer  overruled;  February  15, 

1907,  plea  of  not  guilty.     Case  pending. 

U.  S.  v.  C.,  St.  P.,  M.  &  O.  E.  Co.,  H.  M.  Pearce,  E.  B.  Ober,  and  F.  C.  Gifford 
(District  Court,  Minnesota). — November  8,  1906,  indictment  returned  under  the 
Elkins  law  (50  counts)  for  giving  rebate  on  shipment  of  grain  from  Minneapolis 
to  Duluth  and  Superior;  demurrer  filed  and  overruled;  April  2-10,  1907,  trial; 
verdict  of  guilty  as  to  the  railroad  company  and  H.  M.  Pearce;  not  guilty  as  to 
Gifford  and  Ober;  August  23,  1907,  railroad  company  sentenced  to  pay  fine  of 
$20,000,  and  H.  M.  Pearce  $2,000;  total  $22,000;  August  23,  1907,  writ  of  error 
allowed  to  Circuit  Court  of  Appeals. 

U.  S.  v.  G.  N.  E.  Co.,  B.  Campbell,  W.  W.  Broughton,  H.  A.  Kimball,  and 
D.  G.  Black  (District  Court,  Minnesota). — November  8,  1906,  indictment  returned 
under  the  Elkins  law  (26  counts)  for  giving  rebate  on  shipment  of  grain  from 
Minneapolis  to  Duluth  and  Superior;  demurrers  filed  and  overruled;  February 
23,  1907,  plea  of  not  guilty;  April  9,  1908,  indictment  nol.  pressed. 

U.  S.  v.  G.  N.  E.  Co.,  W.  W.  Broughton,  and  G.  I.  Sweney  (District  Court, 
Minnesota). — November  8,  1906,  indictment  returned  under  the  Elkins  law  (15 
counts)  for  giving  rebate  on  shipment  of  grain  from  Minneapolis  to  Duluth  and 
Superior;  demurrers  filed  and  overruled;  April  term,  1907,  jury  trial — verdict 
of  guilty;  defendant  corporation  fined  $15,000;  appeal  to  Circuit  Court  of  Ap- 
peals for  Eighth  Circuit;  judgment  affirmed  by  Circuit  Court  of  Appeals;  Novem- 
ber 18,  1907,  writ  of  certiorari  allowed  to  the  Supreme  Court  of  the  United 
States  and  case  advanced  for  hearing  on  January  6,  1908;  February  24,  1908, 
Supreme  Court  affirmed  decision  of  Circuit  Court  of  Appeals;  April  9,  1908,  nol. 
pros,  entered  as  to  individual  defendants  (155  Fed.,  945;  208  U.  S.,  452). 

U.  S.  v.  W.  P.  Devereaux  Co.  (a  corporation)  (District  Court,  Minnesota). — 
November  8,  1906,  indictment  returned  under  Elkins  law  (15  counts)  for  so- 


JURISDICTION  OF  COURTS  225 

liciting  and  accepting  rebates  from  Great  Northern  Eailway  Company.  Demurrer 
filed  and  overruled;  May  4,  1907,  plea  of  guilty  and  a  fine  of  $1,000  imposed. 

II.  S.  v.  McCaull-Dinsmore  Co.  (a  corporation)  (District  Court,  Minnesota). — 
November  8,  1906,  indictment  returned  under  Elkins  law  (13  counts)  for  so- 
liciting and  accepting  rebates  on  grain  shipments;  demurrer  filed  and  overruled; 
July  27,  1907,  plea  of  guilty  and  a  fine  of  $1,000  imposed. 

U.  S.  v.  Duluth-Superior  Milling  Co.  (District  Court,  Minnesota). — November  8, 
1906,  indictment  returned  under  the  Elkins  law  (5  counts)  for  soliciting  and 
accepting  rebate  on  grain  shipped  from  Minneapolis  to  Duluth  and  Superior; 
demurrer  filed  and  overruled;  August  27,  1907,  plea  of  guilty  and  a  fine  of  $1,000 
imposed. 

U.  S.  v.  Ames-Brooks  Co.  of  Duluth  (a  corporation)  (District  Court,  Minne- 
sota).— November  8,  1906,  indictment  returned  under  Elkins  law  (5  counts)  for 
soliciting  and  accepting  rebate  on  grain  shipped  from  Minneapolis  to  Duluth  and 
Superior;  demurrer  filed  and  overruled;  July  27,  1907,  plea  of  guilty  on  first 
count  and  fine  of  $1,000  imposed;  other  counts  nol.  pressed. 

U.  S.  v.  M.  &  St.  L.  B.  Co.,  and  J.  T.  Kenny  (District  Court,  Minnesota). — 
November  8,  1906,  indictment  returned  under  the  Elkins  law  (5  counts)  for 
offering  rebate  to  Spencer  Grain  Company  on  grain  shipments;  demurrers  filed 
and  overruled;  February  23,  1907,  plea  of  not  guilty;  November  23,  1907,  in- 
dictment nol.  prossed. 

U.  S.  v.  W.  C.  E.  Co.,  Burton  Johnson,  and  George  T.  Huey  (District  Court, 
Minnesota). — November  8,  1906,  indictment  returned  under  the  Elkins  law  (17 
counts)  for  giving  rebates  to  Spencer  Grain  Company  on  grain  shipments;  de- 
murrers filed  and  overruled;  August  10,  1907,  defendant  corporation  sentenced 
to  pay  fine  of  $17,000,  Burton  Johnson  $2,000,  and  George  T.  Huey  $1,000;  ap- 
peal to  Circuit  Court  of  Appeals  for  the  Eighth  Circuit. 

U.  S.  v.  G.  N.  E.  Co.,  B.  Campbell,  W.  W.  Broughton,  H.  A.  Kimball,  and  A.  G. 
McGuire  (District  Court,  Minnesota). — November  8,  1906,  indictment  returned 
under  the  Elkins  law  (14  counts)  for  giving  rebate  on  shipment  of  grain  from 
Minneapolis  to  Duluth  and  Superior;  demurrers  filed  and  overruled;  February 
23,  1907,  plea  of  not  guilty;  April  9,  1908,  indictment  nol.  prossed. 

U.  S.  v.  G.  N.  E.  Co.,  W.  W.  Broughton,  and  G.  I.  Sweney  (District  Court, 
Minnesota). — November  8,  1906,  indictment  returned  under  the  Elkins  law  (13 
counts)  for  giving  rebates  to  the  McCaull-Dinsmore  Company  on  grain  ship- 
ments; demurrers  filed  and  overruled;  February  23,  1907,  plea  of  not  guilty; 
April  9,  1908,  indictment  nol.  prossed. 

U.  S.  v.  Henry  S.  Hartley  (District  Court,  Western  Missouri). — November  13, 
1906,  indictment  returned  under  the  Elkins  law  for  procuring  concessions  and 
rebates  from  the  St.  Louis  and  San  Francisco  and  the  Chicago,  Burlington  and 
Quincy  Eailroad  companies;  December  1,  1906,  defendant  plead  guilty  and  fined 
$1,000  and  costs. 

U.  S.  v.  Waters-Peirce  Oil  Co.  (District  Court,  Eastern  Missouri). — November 
28,  1906,  indictment  returned  under  the  Elkins  law  for  accepting  and  receiving 
rebates.  Case  pending. 

U.  S.  v.  Waters-Peirce  Oil  Co.  (District  Court,  Eastern  Missouri). — November 
28,  1906,  indictment  returned  under  the  Elkins  law  for  accepting  and  receiving 
rebates.  Case  pending. 

IT.  S.  v.  Toledo  Ice  and  Coal  Co.  (District  Court,  Northern  Ohio). — December 
18,  1906,  indictment  returned  under  the  Elkins  law  for  accepting  and  receiving 
rebates;  demurrer  filed  and  overruled;  June  23,  1908,  plea  of  nolo  contendere 
to  3  counts  and  a  fine  of  $3,600  imposed. 

U.  S.  v.  A.  A.  E.  Co.   (District  Court,  Northern  Ohio).— December  18,  1906, 


226  JURISDICTION  OF  COURTS 

indictment   returned   under  the   Elkins   law   for   offering,   granting,   and   giving 
rebates;  February  1,  1907,  defendant  plead  guilty  and  was  fined  $15,000. 

U.  8.  v.  John  S.  Schinn  (District  Court,  Southern  California). — January  9, 
1907,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  accepting  and 
receiving  rebates;  February  4,  1907,  plea  of  not  guilty.  Case  pending. 

IT.  S.  v.  A.,  T.  &  S.  F.  B.  Co.  (District  Court,  Southern  California). — January 
9,  1907,  indictment  returned  charging  a  violation  of  the  Elkins  law  in  granting 
and  giving  rebates;  April  17,  1907,  demurrer  filed;  April  26,  1907,  demurrer  over- 
ruled. Case  pending. 

TJ.  S.  v.  Grand  Canyon  Lime  &  Cement  Co.  (District  Court,  Southern  Califor- 
nia).— January  9,  1907,  indictment  returned  charging  a  violation  of  the  Elkins 
law  in  accepting  and  receiving  rebates;  April  17,  1907,  demurrer  filed.  April 
26,  1907,  demurrer  overruled.  Case  pending. 

TJ.  S.  v.  Grand  Canyon  Lime  &  Cement  Co.  (District  Court,  Southern  Cali- 
fornia).— January  9,  1907,  indictment  returned  charging  a  violation  of  the 
Elkins  law  in  accepting  and  receiving  rebates;  April  17,  1907,  demurrer  filed; 
April  26,  1907,  demurrer  overruled.  Case  pending. 

U.  S.  v.  A.,  T.  &  S.  F.  E.  Co.  (District  Court,  Southern  California).— Janu- 
ary 9,  1907,  indictment  returned  charging  a  violation  of  the  Elkins'  law  in  grant- 
ing and  giving  rebates;  April  17,  1907,  demurrer  filed;  April  26,  1907,  demurrer 
overruled;  September  30,  1907,  trial — verdict  of  guilty  on  all  counts;  November 
7,  1907,  sentenced  to  pay  a  fine  of  $330,000;  January  14,  1908,  writ  of  error 
allowed  to  the  Circuit  Court  of  Appeals. 

U.  S.  v.  G.  N.  E.  Co.  (District  Court,  Southern  New  York). — February  19, 
1907,  indictment  returned  under  the  Elkins  law  for  offering,  granting,  and  giving 
rebates;  May  20,  1907,  demurrer  filed;  June  4,  1907,  demurrer  overruled;  June 
24,  1907,  plea  of  not  guilty;  April  6-7,  1908,  jury  trial — verdict  of  guilty  and 
sentenced  to  pay  a  fine  of  $5,000. 

U.  S.  v.  Western  Transit  Co.  (Southern  District,  New  York). — May  1,  1907, 
indictment  returned  charging  a  violation  of  the  Elkins  law  in  giving  and  granting 
rebates  on  sugar;  June  6,  1907,  plea  of  guilty;  fined  $10,000. 

TJ.  S.  v.  C.,  M.  &  St.  P.  E.  Co.  (Southern  District,  New  York).— May  7,  1907, 
indictment  returned  charging  a  violation  of  the  Elkins  law  in  giving  and  granting 
rebates  on  coffee;  May  16,  1907,  plea  of  guilty  on  first  and  third  counts  of  in- 
dictment; fined  $20,000. 

U.  S.  v.  C.,  E.  I.  &  P.  E.  Co.  (Southern  District,  New  York).— May  7,  1907, 
indictment  returned  charging  a  violation  of  the  Elkins  law  in  giving  and  grant- 
ing rebates  on  coffee;  May  13,  1907,  plea  of  not  guilty  with  leave  to  withdraw 
within  one  week;  May  20,  1907,  plea  of  not  guilty  withdrawn  and  plea  of  guilty 
to  first  and  second  counts  of  indictment;  fined  $20,000. 

TJ.  S.  v.  N.  Y.,  O.  &  W.  E.  Co.  (Southern  District,  New  York).— May  7,  1907, 
indictment  returned  charging  a  violation  of  the  Elkins  law  in  giving  and  grant- 
ing rebates  on  coffee;  May  13,  1907,  plea  of  not  guilty  with  leave  to  withdraw. 
Case  pending. 

U.  S.  v.  W.  H.  Bennett  (District  Court,  Northern  Ohio).— June  7,  1907,  in- 
dictment returned  under  the  Elkins  law  for  offering,  granting,  and  giving  re- 
bates. Case  pending. 

TJ.  S.  v.  C.  V.  E.  Co.  (Southern  District,  New  York).— June  18,  1907,  indict- 
ment returned  under  the  Elkins  law  for  offering,  granting,  and  giving  rebates; 
June  24,  1907,  plea  of  not  guilty  with  leave  to  withdraw;  demurrer  filed  and 
overruled;  March  17,  1908,  defendant  plead  guilty  on  first  count  and  sentenced 
to  pay  fine  of  $1,000;  other  counts  nol.  pressed. 
TJ.  S.  v.  Vacuum  Oil  Co.  (District  Court,  Western  New  York). — August  9, 


JURISDICTION  OF  COURTS  227 

1907,  indictment  returned   (114  counts)   charging  a  violation  of  the  Elkins  law 
in  accepting  and  receiving  rebates;  October  10,  1907,  demurrer  filed;  January  4, 

1908,  demurrer  overruled.     Case  pending. 

U.  8.  v.  Standard  Oil  Co.  of  New  York  (District  Court,  Western  New  York). — 
August  9,  1907,  indictment  returned  (114  counts)  charging  a  violation  of  the 
Elkins  law  in  accepting  and  receiving  rebates;  October  10,  1907,  demurrer  filed; 
January  4,  1908,  demurrer  overruled.  Case  pending. 

IT.  S.  v.  Standard  Oil  Co.  of  New  York  (District  Court,  Western  New  York). — 
August  9,  1907,  indictment  returned  (40  counts)  charging  a  violation  of  the 
Elkins  law  in  accepting  and  receiving  rebates;  October  10,  1907,  demurrer  filed; 
January  4,  1908,  demurrer  overruled.  Case  pending. 

U.  S.  v.  Standard  Oil  Co.  of  New  York,  and  Vacuum  Oil  Co.  (District  Court, 
Western  New  York). — August  9,  1907,  indictment  returned  (57  counts)  charging 
a  violation  of  the  Elkins  law  in  accepting  and  receiving  rebates.  October  10, 

1907,  demurrer  filed;  January  4,  1908,  demurrer  overruled.     Case  pending. 

U.  S.  v.  Vacuum  Oil  Co.  (District  Court,  Western  New  York). — August  9,  1907, 
indictment  returned  (188  counts)  charging  a  violation  of  the  Elkins  law  in  ac- 
cepting and  receiving  rebates;  October  10,  1907,  demurrer  filed;  January  4, 

1908,  demurrer  overruled.     Case  pending. 

U.  S.  v.  Standard  Oil  Co.  of  New  York  (District  Court,  Western  New  York). — 
August  9,  1907,  indictment  returned  (189  counts)  charging  a  violation  of  the 
Elkins  law  in  accepting  and  receiving  rebates;  October  10,  1907,  demurrer  filed; 
January  4,  1908,  demurrer  overruled.  Case  pending. 

IT.  S.  v.  P.  E.  Co.  (District  Court,  Western  New  York). — August  9,  1907,  in- 
dictment returned  (40  counts)  charging  a  violation  of  the  Elkins  law  in  giving 
and  granting  rebates.  Case  pending. 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (District  Court,  Western  New  York)  .—August 
9,  1907,  indictment  returned  (114  counts)  charging  a  violation  of  the  Elkins  law 
in  giving  and  granting  rebates.  Case  pending. 

U.   S.  v.   Vacuum  Oil  Co.    (District  Court,  Western  New  York). — August  9, 

1907,  indictment  returned    (40  counts)    charging  a  violation  of  the  Elkins  law 
in  accepting  and  receiving  rebates;  October  10,  1907,  demurrer  filed;  January  4, 

1908,  demurrer  overruled.     Case  pending. 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.,  and  P.  E.  Co.  (District  Court,  Western  New 
York). — August  9,  1907,  indictment  returned  (40  counts)  charging  a  violation  of 
the  Elkins  law  in  giving  and  granting  rebates.  Case  pending. 

U.  S.  v.  P.  E.  Co.  (District  Court,  Western  New  York). — August  9,  1907,  in- 
dictment returned  (188  counts)  charging  a  violation  of  the  Elkins  law  in  giving 
and  granting  rebates.  Case  pending. 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.,  and  P.  E.  Co.  (District  Court,  Western  New 
York). — August  9,  1907,  indictment  returned  (188  counts)  charging  a  viola- 
tion of  the  Elkins  law  in  giving  and  granting  rebates.  Case  pending. 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (District  Court,  Western  New  York).— Aug- 
ust 9,  1907,  indictment  returned  (40  counts)  charging  a  violation  of  the  Elkins 
law  for  giving  and  granting  rebates.  Case  pending. 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (District  Court,  Western  New  York).— Aug- 
ust 9,  1907,  indictment  returned  charging  a  violation  of  the  Elkins  law  (188 
counts)  for  giving  and  granting  rebates.  Case  pending. 

U.  S.  v.  Stearns  Salt  &  Lumber  Co.  (District  Court,  Western  Michigan). — 
December  17,  1907,  indictment  returned  (20  counts)  charging  a  violation  of  the 
Elkins  law  in  accepting  and  receiving  rebates;  March  25,  1908,  plea  of  guilty, 
and  defendant  sentenced  to  pay  a  fine  of  $20,000. 

U.  S.  v.  S.  P.  Co.   (District  Court,  Northern  California).— June  26,  1908,  in- 


228  JURISDICTION  OF  COURTS 

dictment  returned  (19  counts)  charging  a  violation  of  the  Elkins  law  in  granting 
and  giving  rebates.  Case  pending. 

U.  S.  v.  California  Pine  Box  &  Lumber  Co.  (District  Court,  Northern  Cali- 
fornia).— June  26,  1908,  indictment  returned  (1  count)  charging  a  violation  of 
the  Elkins  law  in  accepting  and  receiving  rebates.  Case  pending. 

U.  8.  v.  S.  P.  Co.  (District  Court,  Northern  California). — June  30,  1908,  in- 
dictment returned  (1  count)  charging  a  violation  of  the  Elkins  law  in  granting 
and  giving  rebates.  Case  pending. 

U.  S.  v.  S.  P.  Co.  (District  Court,  Northern  California). — June  30,  1908,  in- 
dictment returned  (1  count)  charging  a  violation  of  the  Elkins  law  in  granting 
and  giving  rebates.  Case  pending. 

U.  S.  v.  Penn  Fruit  Co.  (District  Court,  Southern  California). — July  10,  1908, 
indictment  returned  charging  a  violation  of  the  Elkins  law  in  accepting  and  re- 
ceiving rebates.  Case  pending. 

The  informations  alleging  a  violation  of  the  Elkins  law  are : 
U.  S.  v.  Camden  Iron  Works. — Information  filed  June  1,  1906,  in  the  United 
States  District  Court  for  the  Eastern  District  of  Pennsylvania  against  the  Cam- 
den  Iron  Works  for  accepting  rebates  on  iron  pipe  in  violation  of  the  Elkins 
law;  defendants  found  guilty  and  sentenced  to  pay  a  fine  of  $3,000  and  costs  of 
prosecution;  appeal  to  Circuit  Court  of  Appeals;  January  28,  1908,  Circuit  Court 
of  Appeals  reversed  decision  of  district  court.  Case  pending  (145  Fed.,  406; 
150  Fed.,  214). 

U.   S.   v.   B.   &   O.   E.    Co.    (Northern   District,    West   Virginia).— October    9, 

1906,  information   filed   by   the    district   attorney    charging   a   violation    of   the 
Elkins  law  for  discrimination  in  the  distribution  of  cars;  October  23,  1906,  de- 
murrer filed;  April  28,  1907,  demurrer  sustained. 

U.  S.  v.  Mutual  Transit  Co. — Information  filed  February  27,  1907,  in  the 
United  States  District  Court  for  the  Western  District  of  New  York  against  the 
Mutual  Transit  Company  for  giving  rebates  in  violation  of  the  Elkins  law; 
April  1,  1907,  demurrer  filed;  May  24,  1907,  demurrer  overruled.  Case  pending. 

U.  S.  v.  Mutual  Transit  Co. — Information  filed  February  27,  1907,  in  the 
United  States  District  Court  for  the  Western  District  of  New  York  against  the 
Mutual  Transit  Company  for  giving  rebates  in  violation  of  the  Elkins  law; 
April  1,  1907,  demurrer  filed;  May  24,  1907,  demurrer  overruled;  November  18-23, 

1907,  jury    trial — disagreement;    January    20-24,    1908,    jury    trial — verdict    of 
guilty;  March  9,  1908,  defendant  sentenced  to  pay  fine  of  $5,000. 

In  connection  with  the  offenses  under  the  act  to  regulate  com- 
merce there  have  been  prosecutions  under  section  5440,  Revised  Stat- 
utes. 

The  cases  brought  under  section  5440,  Eevised  Statutes,  alleging 
conspiracy  to  violate  the  interstate  commerce  acts,  are : 

U.  S.  v.  Mellen  (District  Court,  Kansas). — April  27,  1892,  indictment  found 
for  conspiring  to  discriminate;  April  11,  1894,  indictment  quashed  as  to  one; 
nol.  prossed  as  to  others. 

U.  S.  v.  Mellen  (District  Court,  Kansas). — April  27,  1892,  indictment  found 
for  conspiring  to  discriminate;  April  11,  1894,  indictment  nol.  prossed. 

U.  S.  v.  Price  (District  Court,  Kentucky). — April  18,  1899,  indictment  found 
for  conspiracy  to  violate  act  to  regulate  commerce;  March  2,  1900,  indictment 
nol.  prossed. 

U.  S.  v.  Weil  (District  Court,  Illinois). — July  1,  1905,  indictment  found  for 
conspiracy  to  obtain  rebates  contrary  to  the  interstate  commerce  act  and  the 


JURISDICTION  OP  COURTS  229 

Elkins  law  on  shipments  of  cattle  and  packing-house  products  from  Chicago  to 
New  York;  September  — ,  1905,  defendants  severally  pleaded  guilty  and  were 
sentenced  to  pay  fines  aggregating  $25,000. 

U.  S.  v.  Price  &  Wells  (District  Court,  Kentucky) .—October  13,  1905,  indict- 
ment found  for  conspiracy  to  violate  the  interstate  commerce  act  and  the 
Elkins  law;  March  13,  1906,  plead  guilty  and  each  fined  $1,025. 

U.  S.  v.  Thomas  and  Taggart  (District  Court,  Missouri). — December  15,  1905, 
indictment  found  for  conspiracy  to  obtain  rebates  contrary  to  the  interstate 
commerce  act  and  the  Elkins  law  on  shipments  of  general  merchandise  from 
Kansas  City  to  the  East;  May  25,  1906,  defendants  found  guilty;  June  22,  1906, 
Thomas  sentenced  to  jail  for  six  months  and  fined  $6,000;  Taggart  sentenced  to 
jail  for  three  months  and  fined  $4,000;  appeal  to  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit;  October  21,  1907,  judgment  reversed  by  the  Circuit  Court  of 
Appeals  and  causes  remanded  to  the  court  below  for  a  new  trial;  January  25, 
1908,  defendants  plead  guilty;  Thomas  fined  $7,000  and  Taggart  $4,000;  total, 
$11,000. 

U.  S.  v.  Kresky  (District  Court,  Missouri). — December  15,  1905,  indictment 
found  for  conspiring  to  obtain  rebates  contrary  to  the  interstate  commerce  act 
and  the  Elkins  law  on  export  flour  from  Kansas  City  to  New  York  City;  June 
11,  1906,  indictment  nol.  pressed. 

U.  S.  v.  Nathan  Guilford,  Fred  L.  Pomeroy,  C.  Goodlow  Edgar,  and  Edwin 
Earle  (District  Court,  Southern  New  York). — May  4,  1906,  indictment  returned 
charging  a  conspiracy  to  violate  the  interstate  commerce  law  by  offering,  grant- 
ing and  giving  rebates;  May  21,  1906,  demurrers  filed;  July  6,  1906,  demurrers 
sustained  (146  Fed.,  298). 

U.  S.  v.  Davis  H.  Kresky  and  W.  A.  McGowan  (District  Court,  Western 
Missouri). — November  13,  1906,  indictment  returned  under  section  5440,  Revised 
Statutes,  charging  a  conspiracy  to  procure  rebates  and  concessions  from  the 
Chicago  and  Alton  and  Chicago,  Milwaukee  and  St.  Paul  Eailway  companies; 
November  20,  1906,  demurrer  filed;  December  2,  1907,  demurrer  overruled;  De- 
cember 21,  1907,  defendants  plead  guilty;  January  21,  each  defendant  sentenced 
to  pay  fine  of  $1,000;  total  $2,000. 

U.  S.  v.  Nick  Nistas,  Samuel  C.  Clark,  and  Louis  Agnes  (District  Court, 
Western  Missouri). — May  9,  1908,  indictment  returned  charging  a  conspiracy  to 
procure  transportation  from  the  Missouri  Pacific  Eailway  Company  in  interstate 
commerce  for  sundry  persons  not  entitled  thereto.  Case  pending. 

Sec.  168.  Venue  of  actions  in  the  Federal  courts. — In  criminal  pro- 
ceedings under  the  interstate  commerce  act  the  venue  is,  under  para- 
graph 1  of  section  10,  "in  any  district  court  of  the  United  States, 
within  the  jurisdiction  of  which  such  offense  was  committed;"  under 
paragraphs  2,  3  and  4  of  section'10,  "in  any  court  of  the  United  States 
of  competent  jurisdiction  within  the  district  in  which  such  offense 
was  committed."  Under  the  Elkins'  law  for  violation  of  section 
1  the  venue  lies,  "in  any  court  of  the  United  States  having  jurisdic- 
tion of  crimes  within  the  district  in  which  such  violation  was  com- 
mitted, or  through  which  the  transportation  may  have  been  con- 
ducted; and  whenever  the  offense  is  begun  in  one  jurisdiction  and 
completed  in  another  it  may  be  dealt  with,  inquired  of,  tried,  de- 
termined, and  punished  in  either  jurisdiction  in  the  same  manner  as  if 


230  JURISDICTION  OF  COURTS 

the  offense  had  been  actually  and  wholly  committed  therein."  The 
venue  under  the  pass  provision  of  section  1  is  the  same. 

In  civil  cases  the  requirements  of  the  acts  concerning  venue  is 
not  as  definite  as  in  criminal  cases.  The  venue  of  suits  brought  by 
the  Commission  to  enforce  its  order  was  not  specifically  provided  for 
prior  to  the  amendment  of  1906 ;  formerly  therefore,  suits  brought  by 
the  Commission  for  such  purpose  were  brought  under  the  provisions 
of  the  Revised  Statutes  relating  to  venue.  By  the  amendment  of  1906, 
when  a  carrier  fails  or  neglects  to  obey  an  order  of  the  Commission, 
other  than  for  the  payment  of  money,  the  Commission  institutes  by 
petition  a  suit  in  the  circuit  court  in  the  district  where  the  defendant 
carrier  has  its  principal  operating  office  or  in  which  the  violation  or 
disobedience  of  the  order  has  happened. 

If  the  order  be  for  the  payment  of  money  and  the  carrier  does  not 
comply  with  it  the  venue  is  in  a  circuit  court  of  the  United  States  for 
the  district  (a)  in  which  the  plaintiff  resides,  or  (6)  in  which  is  lo- 
cated the  principal  operating*0  office  of  the  carrier,  or  (c)  through 
which  the  road  of  the  carrier  runs  (sec.  16). 

The  venue  of  suits  brought  by  carriers  to  enjoin,  set  aside,  annul, 
or  suspend  any  order  or  requirement  of  the  Commission  is  in  the 
district  where  such  carrier  has  its  principal  operating  office;  if  the 
order  or  requirement  be  against  two  or  more  carriers,  then  where  one 
of  them  has  its  principal  operating  office ;  but  if  a  carrier  has  its  prin- 
cipal operating  office  in  the  District  of  Columbia,  then  the  venue  is  in 
the  district  where  such  carrier  has  its  principal  office  (sec.  16). 

If  the  suit  be  to  recover  the  forfeiture  provided  for  by  the  act  the 
venue  is  in  the  district  where  the  carrier  has  its  principal  operating 
office  or  in  any  district  through  which  the  road  of  the  carrier  runs. 

If  an  action  be  brought  to  enforce  an  order  of  the  Commission, 
other  than  for  the  payment  of  money,  by  the  party  injured  thereby 
the  venue  is  in  the  circuit  court  in  the  district  where  such  carrier 
has  its  principal  operating  office,  or  in  which  the  violation  or  dis- 
obedience of  such  order  shall  happen. 

Suits  instituted  by  the  Attorney-General  for  the  recovery  of  the 
value  of  a  rebate  under  the  Elkins  law  for  three-fold  the  amount  of 
money  value  of  the  rebate  may  be  instituted  in  any  court  of  the 
United  States  of  competent  jurisdiction  (sec.  2). 

The  venue  of  a  suit  brought  at  the  instance  of  the  Commission  to 
enjoin  or  restrain  departure  from  published  rates  or  any  discrimina- 
tion prohibited  by  law  as  in  a  circuit  court  of  the  United  States,  sit- 
ting in  equity,  having  jurisdiction;  and  when  the  act  is  alleged  to 

40  It  has  been  said  that  the  reason  for  making  the  venue  the  principal  operating 
office  was  to  permit  suits  against  western  carriers  nearer  to  the  residence  of 
the  original  complainant  and  not  compel  him  to  sue  in  New  York  City,  where 
many  western  roads  have  their  principal  offices. 


JURISDICTION  OF  COURTS  231 

have  been  committed  in  part  in  more  than  one  judicial  district  or 
State,  it  may  be  dealt  with,  inquired  of,  tried  or  determined  in  either 
such  judicial  district  or  State  (Elkins  law,  sec.  3). 

Where  a  single  order  of  the  Commission  has  been  made  in  favor  of 
several  complainants  and  there  are  several  defendants,  the  venue  is 
in  any  district  where  any  one  of  the  joint  complainants  could  main- 
tain his  suit  against  any  one  of  the  joint  defendants  (sec.  16). 

Indictment  and  trial  may  be  had  in  districts  other  than  that  in 
which  the  crime  was  committed: 

INSTANCE.— In  Armour  P.  Co.  v.  TJ.  S.  (209  U.  S.,  56;  s.  C.  82,  C.  C.  A.,  135; 
153  Fed.,  1),  it  was  contended  that  there  was  no  jurisdiction  to  prosecute  for  an 
offense  under  the  Elkins  law  on  the  ground  that  it  was  not  committed  in  the  dis- 
trict where  the  indictment  was  found  and  further  that  the  act  providing  for  in- 
dictment and  trial  in  districts  other  than  the  district  where  the  crime  shall  have 
been  commited  is  unconstitutional,  the  Supreme  Court  said:  "In  this  case  the 
indictment  charges  the  actual  transportation  of  the  property  from  Kansas  City, 
Kansas,  to  New  York  City,  the  course  of  transportation  being  through  the  western 
district  of  Missouri,  in  which  the  prosecution  was  had. 

"We  are  not  now  concerned  with  the  construction  of  the  act  in  making  pro- 
vision for  punishing  the  carrier  or  shipper  for  offering,  granting,  or  giving,  or 
soliciting,  accepting,  or  receiving,  rebates,  concessions,  or  discriminations,  irre- 
spective of  actual  transportation,  for  it  is  specifically  made  an  offense  to  re- 
ceive any  rebate  or  concession  whereby  any  such  property  is,  by  any  device 
whatever,  transported  at  a  less  rate  than  that  named,  published,  and  filed  by  the 
carrier;  and  jurisdiction  is  given  to  prosecute  in  any  criminal  court  of  the 
United  States  in  the  district  through  which  the  transportation  may  have  been 
conducted. 

"Having  in  view  the  offense  charged  in  this  case,  we  think  it  is  clearly  within 
the  terms  of  the  act  making  it  penal  to  procure  the  actual  transportation,  by  any 
of  the  means  denounced  in  the  act,  of  goods  at  a  less  rate  than  that  named  in  the 
tariffs.  It  is  the  purpose  of  the  act  to  punish  those  who  give  or  receive  transporta- 
tion, in  the  sense  of  actual  carriage,  at  a  concession  from  the  published  rates. 
Wherever  such  transportation  is  received,  there  the  offense  is  to  be  deemed  to 
have  been  committed.  Why  may  this  not  be  so?  In  this  feature  of  the  statute, 
the  transportation  being  of  the  essence  of  the  offense,  when  it  takes  place, 
whether  in  one  district  or  another,  whether  at  the  beginning,  at  the  end,  or  in  the 
middle  of  the  journey,  it  is  equally  and  at  all  times  committed. 

"Congress  also  embraced  in  section  1  of  the  Elkins  act  offenses  not  depend- 
ing upon  actual  transportation  through  districts;  and,  as  to  the  trial  of  such, 
it  also  made  provisions  in  the  venue  section. 

"For  the  penal  section  is  not  only  aimed  at  offenses  whereby  property  is  trans- 
ported in  interstate  commerce  at  less  than  published  rates,  but  in  terms  covers 
the  offering,  granting,  giving,  soliciting,  accepting,  or  receiving  of  rebates,  con- 
cessions, or  discriminations,  'whereby  any  other  advantage  is  given  or  discrim- 
ination is  practiced*  in  respect  of  interstate  transportation. 

"Congress  doubtless  had  in  mind  that  some  of  these  offenses  might  be  complete 
in  a  single  district;  some  might  be  begun  in  one  and  completed  in  another,  and 
those  wherein  transportation — actual  carriage — was  made  an  essential  element 
might  continue  through  several  districts;  and  hence  undertook  to  provide  places 
for  trial  of  any  offense  which  might  be  committed  against  the  provisions  of  the 
act.  It  is  at  least  certain  that  these  sections,  construed  together,  make  an  offense 


232  JURISDICTION  OP  COURTS 

of  obtaining  transportation  at  a  concession  from  the  published  rate,  which  shall 
be  trialable  in  any  district  through  which  it  is  had.  That  is  the  offense  of 
which  the  accused  is  charged  in  this  case,  and  such  is  the  district  in  which  it  was 
tried. 

"It  is  contended  that  the  contrary  was  held  in  the  case  of  Davis  v.  United 
States  (43  C.  C.  A.,  448;  104  Fed.,  136),  decided  in  the  Circuit  Court  of  Appeals 
for  the  Sixth  Circuit.  In  that  case  the  prosecution  was  for  false  billing  by  the 
shipper  under  section  2  of  the  act  of  1889,  wherein  the  statute  provided  punish- 
ment for  the  offense  in  a  single  district,  and  it  was  there  held  that  the  crime  was 
complete  in  the  district  in  which  the  false  billing  was  made  and  the  goods  deliv- 
ered to  the  carrier  for  transportation,  and  that  its  actual  carriage  was  not  an 
essential  element  of  the  offense;  and  that  a  prosecution  in  Texas  for  goods  falsely 
billed  and  delivered  to  the  carrier  in  Ohio  could  not  be  maintained. 

"Under  the  amended  act,  transportation  with  a  rebate,  or  at  a  concession  from 
the  established  rates,  is  made  an  offense  as  to  the  shipper  as  well  as  the  carrier, 
thereby  differentiating  the  Elkins  act  from  section  2  of  the  act  of  1889  as  con- 
strued in  the  Davis  case.  In  the  Davis  case  it  was  specifically  said: 

"  'Such  transportation  may  be  through  a  number  of  districts,  but  Congress 
has  given  jurisdiction  for  punishment  of  the  crime  in  the  district  in  which  the 
offense  is  committed.  It  must  have  been  in  the  contemplation  of  Congress  that 
the  fraudulent  representations  may  be  made  in  one  place,  and  the  transportation, 
in  the  sense  of  actual  carriage,  obtained  as  a  result  thereof,  may  be  to  a  State 
or  district  remote  from  the  place  of  delivery,  and  through  a  number  of  districts 
of  the  United  States.  If  it  was  contemplated  that  the  crime  could  only  be 
committed  when  the  carriage  contracted  for  was  concluded,  quite  a  different  pro- 
vision would  have  been  inserted  than  the  one  requiring  punishment  in  the  district 
where  committed.  Congress,  in  passing  this  act,  and  providing  for  the  place 
of  trial  and  punishment  in  a  single  district  evidently  contemplated  the  consum- 
mation of  the  offense  at  the  place  where  the  goods  are  billed  by  the  shipper  and 
the  delivery  for  transportation  takes  place.' 

"But  it  is  said  this  construction  of  the  act  is  in  violation  of  the  sixth  amend- 
ment of  the  Constitution  of  the  United  States,  which  requires  crimes  to  be  prose- 
cuted and  punished  in  the  State  or  district  where  the  same  are  committed,  and 
that,  as  the  transportation  was  had,  at  least  in  part,  in  Kansas,  the  offense  was 
there  completed  and  could  not  be  prosecuted  elsewhere.  But  the  constitutional 
provision  does  not  require  the  prosecution  of  the  defendant  in  the  district  wherein 
he  may  reside  at  the  time  of  the  commission  of  the  offense,  or  where  he  may 
happen  to  be  at  that  time,  provided  he  is  prosecuted  where  the  offense  is  com- 
mitted. The  constitutional  requirement  is  as  to  the  locality  of  the  offense,  and 
not  the  personal  presence  of  the  offender.  (Re  Palliser  (Palliser  v.  United  States) 
136  U.  S.,  257,  265;  Burton  v.  United  States,  202  U.  S.,  344,  387.)  This  doc- 
trine finds  illustration  in  Palliser 's  Case,  supra,  in  which  a  person  was  prosecuted 
in  Connecticut  for  mailing  a  letter  in  New  York,  addressed  to  the  postmaster  in 
the  former  State,  to  induce  him  to  violate  his  official  duty,  and  it  was  therein 
argued  that  the  offense  was  complete  in  New  York,  when  the  letter  was  mailed, 
and  that  only  in  the  New  York  district  could  the  prosecution  be  constitutionally 
had;  but  this  court,  speaking  through  Mr.  Justice  Gray,  said: 

"  'There  can  be  no  doubt  at  all,  if  any  offense  was  committed  in  New  York, 
the  offense  was  continuing  to  be  committed  when  the  letter  reached  the  postmaster 
in  Connecticut.' 

"In  that  case  the  offender  had  done  no  act  out  of  New  York  and  the  acts  per- 
formed by  him  were  complete  when  the  letter  was  delivered  at  the  post-office  in 
that  State;  but  this  court  held  the  crime  to  be  a  continuing  one.  We  think  the 


JURISDICTION  OP  COURTS  233 

doctrine  for  stronger  reason  applies  in  the  present  case,  for  transportation  is  an 
essential  element  of  the  offense  and,  as  we  have  said,  transportation  equally 
takes  place  over  any  and  all  of  the  travelled  route,  and  during  transportation 
the  crime  is  being  constantly  committed.  It  does  not  follow,  from  this  view  of  the 
character  of  the  offense,  that  a  single  transportation  of  goods  can  be  made  the 
basis  of  repeated  separate  criminal  charges  in  each  of  the  districts  through  which 
the  transportation  at  an  illegal  rate  is  had.  Take  the  present  case.  The  charge 
is  of  a  single,  continuous  carriage  from  Kansas  City  to  New  York  at  a  conces- 
sion from  the  legal  rate  for  the  part  of  the  carriage  between  the  Mississippi 
Biver  and  New  York  of  12  cents  for  each  100  pounds  so  transported.  This  is  a 
single  continuing  offense,  not  a  series  of  offenses,  although  it  is  continuously  com- 
mitted in  each  district  through  which  the  transportation  is  received  at  the  pro- 
hibited rate. 

"To  say  that  this  construction  may  work  serious  hardship  in  permitting  prose- 
cutions in  places  distant  from  the  home  and  remote  from  the  vicinage  of  the 
accused  is  to  state  an  objection  to  the  policy  of  the  law,  not  to  the  power  of 
Congress  to  pass  it.  (Hyde  v.  Shine,  199  U.  S.,  62,  78.)  But  this  is  a  large 
country,  and  the  offense  under  consideration  is  one  which  may  be  constantly 
committed  through  its  length  and  breadth.  This  situation  arises  from  modern 
facilities  for  transportation  and  intercommunication  in  interstate  transportation, 
and  considerations  of  convenience  and  hardship,  while  they  may  appeal  to  the 
legislative  branch  of  the  Government,  will  not  prevent  Congress  from  exercising 
its  constitutional  power  in  the  management  and  control  of  interstate  commerce. 
We  think  there  was  jurisdiction  to  prosecute  for  the  offense  charged  within  the 
western  district  of  Missouri." 

Sec.  169.  Jurisdiction  not  conferred  by  consent. — The  question  of 
jurisdiction  of  a  Federal  court  must  be  tested  by  an  examination  of 
the  bill  or  declaration  and  the  statutes  conferring  jurisdiction  upon 
these  tribunals.  If  the  necessary  elements  requisite  to  give  jurisdic- 
tion are  not  present,  jurisdiction  can  not  be  conferred  by  consent  of 
the  parties.  If  the  record  apparently  shows  that  the  court  has  jur- 
isdiction, but  it  develops  at  any  stage  of  the  proceedings  that  the 
case  does  not  actually  involve  a  controversy  or  dispute  of  which  the 
court  can  properly  take  jurisdiction,  it  is  the  duty  of  the  court  to 
promptly  place  an  end  to  the  proceedings,  notwithstanding  the  con- 
sent of  the  parties  that  the  court  shall  proceed." 

This  is  true  whether  the  action  be  originally  begun  in  a  Federal 
court  or  removed  from  a  State  court,  as  jurisdiction  can  never  be  ac- 
quired solely  because  of  the  consent  of  the  parties,  even  if  they  might 
contract  in  respect  thereto ;  **  but  one  may  waive  certain  formalities.48 

Sec.  170.  Jurisdiction  on  removal. — If  an  action  be  brought  in  a 
State  court  to  enforce  any  of  the  provisions  of  the  interstate  commerce 
act,  the  suit  can  not  be  removed  into  a  Federal  court.  The  jurisdic- 
tion of  Federal  courts  to  enforce  rights  given  by  the  act  is  exclusive," 

"Minnesota  v.  Northern  Securities  Co.   (194  U.  S.,  48). 

"Brown  on  Jurisdiction   (sec.  5). 

"Brown  on  Jurisdiction  ''sees.  17  and  18). 

44  That  the  State  courts  have  no  jurisdiction  to  enforce  rights  given  by  the  inter- 
state commerce  act,  see  Swift  v.  P.  &  E.  E.  Co.  (58  Fed.,  858),  Edmunds  v  I.  C 
E.  Co.  (80  Fed.,  79),  Van  Patten  v.  C.  M.  &  St.  P.  E.  Co.  (74  Fed.,  981). 


234  JURISDICTION  OP  COURTS 

and  as  the  State  court  can  acquire  no  jurisdiction,  a  suit  removed  from 
the  State  court  to  the  Federal  court  will  not  give  to  the  latter  juris- 
diction." But  if  an  action  is  brought  to  enforce  a  right  not  arising 
under  the  interstate  commerce  act,  the  State  court  having  jurisdiction, 
it  may  be  removed  to  a  Federal  court  if  the  requirements4*  relating 
to  removal  of  causes  are  present.47 

Sec.  171.  Nature  of  the  jurisdiction  of  the  Federal  courts  in  civil 
cases  brought  to  enforce  an  order  of  the  Commission. — The  jurisdiction 
of  Federal  courts  in  a  proceeding  to  enforce  an  order  of  the  Com- 
mission, is  not  such  as  to  make  them  the  mere  executioner  of  the 
Commission 's  order  or  recommendation,  to  such  an  extent  as  to  impose 
upon  the  courts  a  nonjudicial  power.  The  courts  are  not  limited  and 
restricted  to  the  mere  ministerial  duty  of  enforcing  an  order  or  re- 
quirement of  the  Commission.  Such  suits  are  original  and  inde- 
pendent proceedings,  in  which  the  Commission 's  report  is  made  prima 
facie  evidence  of  the  matters  of  fact  therein  stated.  The  court  is 
not  confined  to  a  mere  review  of  the  case  below,  but  hears  and  de- 
termines the  cause  de  novo,  upon  proper  pleadings  and  proofs,  the 
latter  including  not  only  the  prima  facie  facts  reported  by  the  Com- 
mission but  all  such  other  further  testimony  as  either  party  may  in- 
troduce bearing  upon  the  matters  in  controversy.48 

The  courts  are  not  the  mere  executioners  of  the  orders  of  the  Com- 
mission : 

INSTANCE.— In  K.  &  L.  Bridge  Co.  v.  L.  &  N.  E.  Co.  (37  Fed.,  567)  it  was 
held  that  the  circuit  court  is  not  the  mere  executioner  of  the  Commission's  order 
or  recommendation,  and  that  the  court  is  not  confined  to  a  mere  reexamination 
of  the  case  as  heard  and  reported,  but  is  to  hear  and  determine  the  case  de  novo, 
upon  proper  pleadings  and  proofs.  The  report  of  the  Commission  is  only  prima 
facie  evidence  of  the  facts  stated,  and  further  testimony  may  be  introduced  by 
either  party. 

But  such  proceeding  is  an  independent  and  original  one : 
INSTANCE.— In  I.  C.  C.  v.  C.  K  O.  &  T.  P.  E.  Co.  (56  Fed.,  925),  held  that  a 
suit  brought  by  the  Commission  to  enforce  an  order  is  an  original  and  inde- 
pendent proceeding,  and  that  the  court  may  hear  and  determine  the  cause  de 
novo,  upon  proper  pleadings  and  proof. 

But  the  courts  have  no  power  to  change  or  modify  the  order  of  the 
Commission : 

INSTANCE.— In  D.  G.  H.  &  M.  E.  Co.  v.  I.  C.  C.  (74  Fed.,  803),  held  that  the 
power  given  to  the  courts  to  enforce  a  "lawful  order"  is  strictly  limited  to  the 

48  Minnesota  v.  Northern  Securities  Co.  (194  IT.  S.,  48),  Sheldon  v.  Wabash  E. 
Co.  (105  Fed.,  785),  Swift  v.  P.  E.  Co.  (58  Fed.,  858). 

"Sheldon  v.  Wabash  E.  Co.   (105  Fed.,  785). 

trL.  V.  E.  Co.  v.  Eainey  (99  Fed.,  596;  112  Fed.,  487). 

"Section  16:  K.  &  I.  Bridge  Co.  v.  L.  &  N.  E.  Co.  (37  Fed.,  567),  in  which 
Jackson,  C.  J.,  indicated  that  had  the  power  conferred  upon  the  courts  been  the 
ministerial  duty  of  enforcing  the  Commission's  order,  and  hence  non- judicial, 
the  act  might  for  that  reason  have  been  held  unconstitutional,  citing  Hayburn's 
case  (2  Ball.  (U.  S.)  409)  and  U.  S.  v.  Ferreira  (13  How.,  40). 


JURISDICTION  OP  COURTS  235 

power  conferred,  and  that  the  court  can  not  modify  or  change  the  order,  but  is 
limited  to  granting  or  refusing  compulsory  obedience  to  it. 

Nor  substitute  a  modified  order  for  the  original  one: 
INSTANCE.— In  I.  C.  C.  v.  D.,  L.  &  W.  E.  Co.   (64  Fed.,  723)   held  that  the 
circuit  court  can  not,  on  a  motion  for  rehearing,  substitute  an  order  made  by  the 
Commission  for  an  order  which  the  Commission  certified  it  intended  to  make. 

Prior  to  the  time  the  orders  of  the  Commission  were  self  executing 
many  cases  were  brought  in  the  courts  to  enforce  the  decisions  of  the 
Commission.  In  some  instances  the  judgment  and  views  of  the  Com- 
mission were  sustained;  in  others  the  courts  refused  to  enforce  the 
orders  because  of  different  interpretations  of  the  act,  because  the 
courts  did  not  agree  with  the  findings  of  fact,  because  of  additional 
evidence  introduced  by  the  carriers  before  the  court  and  which  had 
been  withheld  from  the  Commission,  all  on  the  theory  that  the  courts 
could  only  enforce  a  " lawful"  order  of  the  Commission. 

The  cases  *"  brought  to  enforce  the  orders  of  the  Commission  are : 

L  C.  C.  v.  C.,  B.  &  Q.  E.  Co.  (Circuit  Court,  Illinois). — March  — ,  1899,"  peti- 
tion filed  to  enforce  order  of  the  Commission  in  the  Cattle  Eaisers'  Terminal  case; 
December  — ,  1899,  petition  dismissed;  June  — ,  1900,  Circuit  Court  of  Appeals 
affirmed  circuit  court;  June  — ,  1902,  Supreme  Court  affirmed  the  courts  below, 
but  without  prejudice  as  to  further  proceedings;  ease  still  pending  before  the 
Commission  (94  Fed.,  272;  98  Fed.,  173;  103  Fed.,  249;  186  U.  S.,  320). 

I.  C.  C.  v.  B.  &  O.  E.  Co.  (Circuit  Court,  Ohio).— May  — ,  1890,  petition  filed 
in  circuit  court  to  enforce  an  order  of  the  Commission  declaring  certain  party 
rates  illegal;  August  — ,  1890,  circuit  court  dismissed  the  petition;  May  — ,  1892, 
Supreme  Court  sustained  the  circuit  court  (43  Fed.,  37;  145  II.  S.,  263). 

I.  C.  C.  v.  A.,  T.  &  S.  F.  E.  Co.  (Circuit  Court,  California). — April  — ,  1891, 
petition  filed  to  enforce  order  of  the  Commission  in  regard  to  the  San  Bernardino 
long-and-short  haul  case;  April  — ,  1892,  petition  dismissed;  May  1,  1893,  re- 
manded by  Supreme  Court  to  Circuit  Court  of  Appeals,  and  subsequently  discon- 
tinued (50  Fed.,  295;  149  U.  S.,  264). 

I.  C.  C.  v.  L.  V.  E.  Co.  (Circuit  Court,  Pennsylvania). — May  — ,  1891,  petition 
filed  to  enforce  order  of  the  Commission  in  the  Coxe  Brothers  coal  case;  May  — , 
1896,  petition  dismissed;  October  1,  1897,  discontinued  in  the  Circuit  Court  of 
Appeals  (49  Fed.,  117;  74  Fed.,  784). 

I.  C.  C.  v.  C.,  N.  O.  &  T.  P.  E.  Co.  (Circuit  Court,  Georgia)  .—October  — ,  1891, 
petition  filed  to  enforce  order  of  Commission  in  the  Social  Circle  long-and-short 
haul  case;  June  — ,  1893,  petition  dismissed  by  circuit  court;  May  — ,  1894, 
Circuit  Court  of  Appeals  sustained  the  Commission  on  two  questions  and  the 
circuit  court  on  one  question;  March  — ,  1896,  Supreme  Court  sustained  Circuit 
Court  of  Appeals  (62  Fed.,  690;  64  Fed.,  981;  76  Fed.,  183;  76  Fed.,  1007;  167 
U.  S.,  479). 

I.  C.  C.  v.  G.  E.  Co.  (Circuit  Court,  Georgia). — November  — ,  1891,  petition  filed 
to  enforce  order  of  Commission  in  regard  to  unjust  discrimination  because  of 
color;  ,  1899,  case  discontinued. 

I.  C.  C.  v.  D.,  G.  H.  &  M.  E.  Co.  (Circuit  Court,  Michigan).— November  — ,  1891, 
petition  filed  to  enforce  order  of  Commission  in  regard  to  unjust  discrimination 
by  granting  free  cartage;  October  — ,  1893,  circuit  court  decreed  enforcement  of 

48  From  list  published  by  the  Department  of  Justice. 


236  JURISDICTION  OP  COURTS 

Commission's  order;  April  — ,  1896,  Circuit  Court  of  Appeals  reversed  the  cir- 
cuit court;  May  — ,  1897,  Supreme  Court  sustained  Circuit  Court  of  Appeals  (57 
Fed.,  1005;  74  Fed.,  803;  167  U.  S.,  663). 

I.  C.  C.  v.  T.  &  P.  E.  Co.  (Circuit  Court,  New  York).— January  — ,  1892,  pe- 
tition filed  to  enforce  order  of  Commission  in  the  Import  Kate  case;  October  — , 
1892,  Circuit  Court  decreed  enforcement  of  Commission's  order;  October  — ,  1893, 
Circuit  Court  of  Appeals  sustained  the  circuit  court;  March  — ,  1896,  Supreme 
Court  reversed  courts  below  (52  Fed.,  187;  57  Fed.,  948;  162  U.  S.,  197). 

L  C.  C.  v.  N.  Y.,  P.  &  N.  E.  R.  Co.  (Circuit  Court,  Virginia).— August  — ,  1892, 
petition  filed  to  enforce  order  of  Commission  in  the  Delaware  Grange  case; 
,  1893,  petition  dismissed. 

L  C.  C.  v.  M.  P.  E.  Co.  (Circuit  Court,  North  Dakota).— August  — ,  1892,  peti- 
tion filed  to  enforce  order  of  the  Commission  in  the  Fargo  long-and-short  haul 
sugar  case;  case  still  pending. 

I.  C.  C.  v.  L.  &  N.  E.  Co.  (Circuit  Court,  Tennessee). — March  — ,  1893,  peti- 
tion filed  to  enforce  order  of  the  Commission  in  the  Nashville  coal  case;  April 

— ,  1896,  petition  dismissed;  ,  1901,  case  discontinued  in  Circuit  Court  of 

Appeals  (73  Fed.,  409). 

I.  C.  C.  v.  L.  &  N.  E.  Co.  (Circuit  Court,  Ohio). — March  — ,  1893,  petition  filed 
to  enforce  order  of  the  Commission  in  the  Gerke  long-and-short  haul  beer  case; 
,  1901,  case  discontinued. 

L  C.  C.  v.  E.  T.,  V.  &  G.  E.  Co.  (Circuit  Court,  Tennessee). — April  — ,  1893, 
petition  filed  to  enforce  order  of  the  Commission  in  the  Chattanooga  long-and-short 
haul  case;  February  — ,  1898,  circuit  court  decreed  enforcement  of  Commission's 
order;  November  — ,  1899,  Circuit  Court  of  Appeals  sustained  the  circuit  court; 
April  — ,  1901,  Supreme  Court  reversed  courts  below  (85  Fed.,  107;  99  Fed.,  52; 
181  U.  S.,  1). 

L  C.  C.  v.  W.  &  A.  E.  Co.  (Circuit  Court,  Georgia).— May  — ,  1893,  petition 
filed  to  enforce  order  of  the  Commission  in  the  Georgia  Eailway  Commission  case; 
June  — ,  1898,  petition  dismissed;  March  — ,  1899,  Circuit  Court  of  Appeals  af- 
firmed circuit  court;  April  — ,  1901,  Supreme  Court  affirmed  courts  below  (88 
Fed.,  186;  93  Fed.,  83;  181  U.  S.,  29). 

L  C.  C.  v.  Clyde  S.  S.  Co.  (Circuit  Court,  Georgia). — This  case  took  same 
coure  as  above  case  (see  references  in  preceding  case). 

I.  C.  C.  v.  Clyde  S.  S.  Co.  (Circuit  Court,  Georgia). — This  case  took  same 
course  as  above  case  (see  references  to  I.  C.  C.  v.  W.  &  A.  E.  Co.). 

I.  C.  C.  v.  Ocean  S.  S.  Co.  (Circuit  Court,  Georgia).— May  — ,  1893,  petition 
filed  to  enforce  order  of  the  Commission  in  the  Georgia  Eailway  Commission  case; 
• ,  1901,  case  discontinued. 

I.  C.  C.  v.  C.,  N.  O.  &&  T.  P.  E.  Co.  (Circuit  Court,  Georgia)  .—Same  history 
as  above  case. 

I.  C.  C.  v.  C.,  M.  &  St.  P.  E.  Co.  (Circuit  Court,  Minnesota).— July  — ,  1893, 
j>etition  filed  to  enforce  order  of  the  Commission  in  regard  to  relative  wheat  rates 

from  Dakotas  to  Minneapolis;   — ,  1893,  modified  order  of  Commission 

complied  with,  and  case  discontinued. 

I.  C.  C.  v.  A.  M.  E.  Co.  (Circuit  Court,  Alabama). — January  — ,  1894,  petition 
filed  to  enforce  order  of  the  Commission  in  regard  to  the  Troy  long-and-short 
haul  case;  July  — ,  1895,  petition  dismissed;  June  — ,  1896,  Circuit  Court  of 
Appeals  affirmed  Circuit  Court;  November  — ,  1897,  Supreme  Court  affirmed 
courts  below  (69  Fed.,  227;  74  Fed.,  715;  168  U.  S.,  144). 

I.  C.  C.  v.  C.,  N.  O.  &  T.  P.  E.  Co.  (Circuit  Court,  Ohio). — September  — ,  1894, 
petition  filed  to  enforce  order  of  the  Commission  in  the  Chicago  and  Cincinnati 
Freight  Bureaus'  cases;  October  — ,  1896,  petition  dismissed;  October  — ,  1896, 


JURISDICTION  OF  COURTS  237 

case  certified  to  Supreme  Court  by  Circuit  Court  of  Appeals;  May  — ,  1897,  Su- 
preme Court  affirmed  the  circuit  court  (62  Fed.,  690;  64  Fed.,  981;  76  Fed.,  183; 
76  Fed.,  1007;  167  U.  8.,  479). 

I.  C.  C.  v.  N.  E.  R.  Co.  (Circuit  Court,  South  Carolina). — January  — ,  1896, 
petition  filed  to  enforce  order  of  Commission  in  the  Truck  Farmers'  strawberry 
case;  April  — ,  1896,  petition  dismissed;  November  — ,  1897,  Circuit  Court  of  Ap- 
peals affirmed  the  circuit  court;  no  appeal  (74  Fed.,  70;  83  Fed.,  611). 

I.  C.  C.  v.  S.  P.  Co.  (Circuit  Court,  Colorado).— March  30,  1896,  petition  filed 
to  enforce  order  of  the  Commission  in  regard  to  unjust  discrimination  in  rates 
on  iron  from  Pueblo,  Colo.,  to  Pacific  coast  points;  May  — ,  1896,  plea  to  juris- 
diction overruled.  Subsequently  the  order  of  the  Commission  was  substantially 
complied  with  and  the  case  was  discontinued. 

I.  C.  C.  v.  W.  N.  Y.  &  P.  E.  Co.  (Circuit  Court,  Pennsylvania). — May  — , 
1896,  petition  filed  to  enforce  order  of  the  Commission  in  the  Titusville  oil  cases; 
still  pending. 

I.  C.  C.  v.  S.  E.  Co.  (Circuit  Court,  Alabama). — November  14,  1896,  petition 
filed  to  enforce  order  of  Commission  in  the  Piedmont  long-and-short  haul  case; 

November  — ,  1900,  petition  dismissed;  — ,  1901,  case  discontinued  in 

Circuit  Court  of  Appeals  (117  Fed.,  741;  122  Fed.,  800). 

I.  C.  C.  v.  S.  E.  Co.   (Circuit  Court,  Alabama). — Same  history  as  above  case. 

I.  C.  C.  v.  L.  &  N.  E.  E.  Co.  (Circuit  Court,  Alabama). — July  23,  1897,  petition 
filed  to  enforce  order  of  the  Commission  in  the  La  Grange  long-and-short  haul 
case;  December  — ,  1899,  injunction  granted;  May  — ,  1900,  Circuit  Court  of 
Appeals  reversed  circuit  court;  May  18,  1903  Supreme  Court  affirmed  decision  of 
Circuit  Court  of  Appeals  (101  Fed.,  146;  102  Fed.,  709;  108  Fed.,  988;  190  U. 
S.,  273). 

I.  C.  C.  v.  N.  C.  &  St.  L.  E.  Co.  (Circuit  Court,  Florida). — November  2,  1900, 
petition  filed  to  enforce  order  of  Commission  in  the  Hampton  long-and-short  haul 
case;  April  16,  1902,  petition  dismissed;  February  24,  1903,  Circuit  Court  of 
Appeals  sustained  circuit  court;  November  1,  1904,  discontinued  in  Supreme 
Court 'by  stipulation  (120  Fed.,  934). 

I.  C.  C.  v.  L.  &  N.  E.  Co.  (Circuit  Court,  Georgia). — June  9,  1900,  petition  to 
enforce  order  of  the  Commission  in  the  Pensacola  naval  stores  case;  July  — , 
1902,  injunction  granted;  no  appeal  (118  Fed.,  613). 

I.  C.  C.  v.  S.  P.  Co.  (Circuit  Court,  California).— June  — ,  1900,  petition  filed 
to  enforce  order  of  the  Commission  in  the  Kearney  long-and-short  haul  case; 
November  26,  1904,  petition  dismissed;  no  appeal. 

I.  C.  C.  v.  S.  E.  Co.  (Circuit  Court,  Virginia). — April  1,  1901,  petition  filed  to 
enforce  order  of  Commission  as  to  unreasonable  rates  to  Danville,  Va. ;  August  — , 
1902,  petition  dismissed;  May  — ,  1903,  Circuit  Court  of  Appeals  sustained  cir- 
cuit court;  November  1,  1904,  discontinued  in  Supreme  Court  by  stipulation  (117 
Fed.,  741;  122  Fed.,  800). 

I.  C.  C.  v.  L.  &  N.  E.  Co.  (Circuit  Court,  Georgia).— August  4,  1902,  petition 
filed  to  enforce  order  of  the  Commission  in  the  Tifton  long-and-short  haul  case; 
March  — ,  1904,  defendants  complied  with  Commission's  order;  petition  dismissed, 
defendants  paying  costs. 

I.  C.  C.  v.  C.  P.  &  V.  E.  Co.  (Circuit  Court,  North  Carolina) .—August  16,  1902, 
petition  filed  to  enforce  order  of  the  Commission  in  Wilmington  Tariff  Associa- 
tion case;  August  — ,  1903,  petition  dismissed;  no  appeal  (124  Fed.,  624). 

I.  C.  C.  v.  S.  P.  Co.  (Circuit  Court,  California). — August  21,  1902,  petition 
filed  to  enforce  order  of  the  Commission  in  the  orange  routing  cases;  September 
6,  1904,  injunction  granted;  February  26,  1906,  Supreme  Court  reversed  circuit 
court  (132  Fed.,  829;  200  U.  S.,  536). 


238  JURISDICTION  OF  COURTS 

I.  C.  C.  v.  L.  S.  &  M.  S.  E.  Co.  (Circuit  Court,  Ohio).— March  19,  1903,  petition 
filed  to  enforce  order  of  the  Commission  in  the  National  Hay  Association  ease; 
January  27,  1905,  petition  dismissed;  May  21,  1906,  Supreme  Court  affirmed  cir- 
cuit court  (134  Fed.,  942;  202  U.  S.,  613). 

L  C.  C.  v.  C.  H.  &  D.  E.  Co.  (Circuit  Court,  Ohio).— July  20,  1904,  petition 
filed  to  enforce  order  of  the  Commission  in  the  Proctor  &  Gamble  Soap  case; 
November  22,  1905,  injunction  granted.  Appeal  to  Supreme  Court;  May  13, 
1908,  decree  affirmed  by  Supreme  Court  (146  Fed.,  559;  206  U.  S.,  142). 

I.  C.  C.  v.  C.  G.  W.  E.  Co.  (Circuit  Court,  Illinois)  .—April  29,  1905,  petition 
filed  to  enforce  order  of  the  Commission  in  Chicago  Live  Stock  Exchange  case; 
November  20,  1905,  petition  dismissed  (141  Fed.,  209;  209  IT.  S.,  108). 

I.  C.  C.  v.  S.  P.  Co.  (Circuit  Court,  California). — April  — ,  1905,  petition 
filed  to  enforce  order  of  Commission  in  the  California  orange  rate  case;  still 
pending  (132  Fed.,  829;  200  U.  S.,  536). 

I.  C.  C.  v.  I.  C.  E.  Co.  (Circuit  Court,  Louisiana). — June  — ,  1905,  petition 
filed  to  enforce  order  of  the  Commission  in  Central  Yellow  Pine  Lumber  Associa- 
tion case;  case  still  pending  (206  U.  S.,  441). 

I.  C.  C.  v.  M.  &  O.  E.  Co.  (Circuit  Court,  Mississippi)  .—July  — ,  1905,  petition 
filed  to  enforce  order  of  the  Commission  in  the  Aberdeen  Group  Commercial  Asso- 
ciation case;  case  still  pending. 

I.  C.  C.  v.  C.  G.  W.  E.  Co.  (Circuit  Court,  Illinois). — July  17,  1905,  petition 
filed  under  the  Elkins  law  to  enforce  order  of  the  Commission  in  Chicago  Live- 
stock Exchange  case;  November  20,  1905,  petition  dismissed. 

Sec.  172.  Limitations  of  actions  before  the  courts. — In  suits  brought 
for  damages  under  the  provisions  of  sections  8  and  9  of  the  interstate 
commerce  act  the  several  State  statutes  of  limitation  apply,  as  the 
act  prescribes  no  limitation  within  which  suits  based  thereon  shall  be 
instituted.50 

Suits  brought  by  a  carrier  to  enjoin,  set  aside,  annul,  or  suspend 
any  order  or  requirement  of  the  Commission  may  be  brought  at  any 
time  after  such  order  is  promulgated  (sec.  16)  and  the  statute  does  not 
provide  a  period  of  limitations  within  which  suits  of  this  nature  must 
be  filed.  It  is  manifest,  however,  that  as  the  orders  of  the  Commis- 
sion, other  than  for  the  payment  of  money,  are  only  to  remain  in 
force  and  effect  for  a  period  not  exceeding  two  years,  the  time  within 
which  suit  must  be  brought  to  set  aside  such  orders  must  be  within 
that  period. 

In  a  suit  by  petition  for  the  enforcement  of  an  order  of  the  Com- 
mission awarding  damages,  the  period  of  limitation  is  one  year  from 
the  date  of  the  order  (sec.  16 ).81 

Suits  brought  by  the  Attorney-General  under  the  provisions  of  sec- 
tion 1  of  the  Elkins  law  to  recover  three-fold  the  amount  of  money 

"Eatican  v.  Terminal  E.  Assn.  (114  Fed.,  668).  Thus  in  Missouri  suit  must 
be  instituted  within  three  years,  ibid;  and  in  Louisiana  within  one  year  (Copp 
v.  L.  &  N.  E.  Co.,  50  Fed.,  164). 

51  The  act  provides  that  complaints  for  the  recovery  of  damages  shall  be  filed 
with  the  Commission  within  two  years  from  the  time  the  cause  of  action  accrues 
(sec.  16)  ;  the  statute  is  silent  concerning  the  period  of  limitations  within  which 
one  may  sue  in  the  courts  for  damages ;  quaere,  is  the  limitation  of  complaints  be- 
fore the  Commission  binding  on  the  courts,  or  would  the  State  statute  prevail? 


JURISDICTION  OF  COURTS  239 

received  as  a  rebate  may  comprehend  rebates  or  other  considerations 
received  or  accepted  for  a  period  of  six  years  prior  to  the  amendment 
of  the  action. 

In  suits  brought  by  the  Commission  to  enforce  its  order  under  sec- 
tion 16  no  period  of  limitations  is  specified  in  the  act. 

Sec.  173.  Expedition  of  suits. — The  provisions  of  "An  act  to  expe- 
dite the  hearing  and  determination  of  suits  in  equity,  and  so  forth" 
approved  February  11,  1903,52  are  made  applicable  to  (a)  suits 
brought  by  carriers  in  the  circuit  courts  against  the  Commission  to 
enjoin,  set  aside,  annul,  or  suspend  any  order  or  requirement  of  the 
Commission,  including  the  hearing  on  application  for  a  preliminary 
injunction,  and  (6)  to  any  proceedings  in  equity  to  enforce  any  order 
or  requirement  of  the  Commission,  or  any  provisions  of  the  act  to  reg- 
ulate commerce  (sec.  16). 

The  provisions  of  this  act  also  apply  to  proceedings  brought  under 
section  3  of  the  Elkins'  law  where  the  Attorney-General  upon  his  own 
motion  or  upon  the  request  of  the  Interstate  Commerce  Commission 
seeking  to  enforce  an  observance  of  the  published  tariffs  or  to  prevent 
discriminations  forbidden  by  law. 

The  usual  practice  to  bring  into  effect  the  provisions  of  the  expedi- 
ting act  is  for  the  Commission,  when  it  receives  notice  of  the  filing  of 
an  appeal  and  the  motion  for  the  preliminary  injunction,  to  secure 
from  the  Attorney-General  a  certificate  that  in  his  opinion  the  case  is 
of  general  public  importance ;  such  certificate  is  usually  granted  as  a 
matter  of  course  and  the  act  to  regulate  commerce  (sec.  16)  makes  it 
the  duty  of  the  Attorney-General  to  file  the  certificate  in  suits  brought 
against  the  Commission  to  enjoin,  set  aside,  annul,  or  suspend  any  or- 
der or  requirement  of  the  Commission.  The  certificate  is  usually  filed 
with  the  clerk  of  the  court  immediately  prior  to  the  time  fixed  for  the 
hearing  on  the  motion  for  a  preliminary  injunction.  If  there  be  not 
present  the  three  judges  required  by  the  act  a  regular  continuance  is 
taken  until  a  practicable  day  when  three  judges  can  be  present. 

The  clerk  must  furnish  to  each  of  the  judges  a  copy  of  such  certifi- 
cate which  serves  as  their  authority  to  sit. 

If  upon  hearing  there  be  a  division  among  the  judges,  the  statute 
provides  that  the  case  shall  be  certified  to  the  Supreme  Court  for 
review  in  the  same  manner  as  if  an  appeal  had  been  taken. 

The  effect  of  the  application  of  the  expediting  act K  to  the  cases  above 
mentioned,  as  well  as  to  other  cases  to  which  it  is  applicable,  is  not 
only  that  the  cases  are  heard  by  three  judges  but  the  cases  are  to  be 

M32  Stat.  L.,  823. 

"This  act  provides  for  the  expedition  of  cases  brought  under  the  "Act  to 
protect  trade  and  commerce  against  unlawful  restraints  and  monopolies, ' '  approved 
July  2,  1890  (Sherman  antitrust  act)  and  "An  act  to  regulate  commerce,"  ap- 
proved February  4,  1887,  and  any  other  acts  involving  like  purposes,  wherein 


240  JURISDICTION  OF  COURTS 

expedited  in  every  possible  manner  and  assigned  for  hearing  at  the 
earliest  practicable  day;  a  further  result  of  the  certificate  of  the 
Attorney-General  is  that  appeals  lie  direct  to  the  Supreme  Court. 

This  act  is  not  repugnant  to  the  provisions  of  section  16  of  the  act 
to  regulate  commerce,  as  it  existed  prior  to  the  amendment  of  June 
29,  1906,  providing  that  an  appeal  should  not  stay  or  supersede  the 
operation  of  a  final  decree ;  nor  were  the  provisions  of  the  former  sec- 
tion 16  repealed  by  the  expediting  act  (I.  C.  C.  v.  S.  P.  Co.,  137 
Fed.,  606). 

Where  a  circuit  court  had,  in  a  proceeding  brought  by  the  Attor- 
ney-General under  section  3  of  the  Elkins  law,  ordered  the  produc- 
tion of  books,  papers  and  documents  to  be  used  as  evidence  before 
the  Interstate  Commerce  Commission,  it  was  held  that  appeal  from 
such  order  was  direct  to  the  Supreme  Court  of  the  United  States 
(I.  C.  C.  v.  Baird,  194  U.  S.,  25),  as  the  provisions  of  the  expediting 
act  were  specifically  made  to  apply  to  such  cases. 

Sec.  174.  Contempt  of  order  to  appear  before  the  Commission. — Where 
the  circuit  court  has  ordered  a  common  carrier  subject  to  the  interstate 
commerce  act  or  an  individual,  requiring  it  or  him  to  appear  before 
the  Commission  (and  produce  books  and  papers  if  so  ordered)  and 
give  evidence  touching -the  matter  in  question,  failure  to  obey  such 
order  may  be  punished  as  a  contempt." 

It  is  provided  by  section  12  of  the  interstate  commerce  act  that 
"any  failure  to  obey  such  order  of  the  court  [requiring  a  common 
carrier  or  other  person  to  appear  before  the  Commission  and  produce 
books  and  papers,  if  so  ordered,  and  give  evidence]  may  be  punished 
by  such  court  as  a  contempt  thereof."  As  jurisdiction  to  issue  such 
an  order  is  vested  in  the  circuit  courts,  these  courts  have  power  to 
punish  as  a  contempt  any  one  failing  to  obey  its  order. 

The  nature  of  proceedings  in  contempt  was  considered  in  Bessette 
v.  Conkey  Co.  (194  U.  S.,  324)  : 

A  contempt  proceeding  is  sui  generis.  It  is  criminal  in  its  nature,  in  that  the 
party  is  charged  with  doing  something  forbidden,  and,  if  found  guilty,  is  pun- 
ished. Yet  it  may  be  resorted  to  in  civil  as  well  as  criminal  actions,  and  also 
independently  of  any  civil  or  criminal  action. 

In  cases  brought  in  the  Federal  courts,  where  jurisdiction  is  spe- 
cifically given  by  the  interstate  commerce  act,  they  doubtless  retain 
their  inherent  power  to  punish  for  contempt,  although  they  are  given 

the  United  States  is  complainant.  The  provisions  of  the  expediting  act  were 
made  to  apply  to  the  Elkins  law  (Feb.  19,  1903;  32  Stat.  L.,  847)  by  section  3 
thereof.  By  the  amendment  of  June  29,  1906  (34  Stat.  L.,  584)  the  provisions  of 
the  expediting  act  were  made  applicable  to  proceedings  of  a  specified  nature 
brought  under  the  interstate  commerce  act.  For  cases  in  which  the  certificate 
provided  by  this  act  has  been  filed  see  sec.  165,  ante. 

54  Disobedience  to  a  summons  issued  by  the  Commission  is  not  a  contempt  as 
it  is  an  administrative  body;  in  order  to  constitute  contempt  there  must  be  an 
order  of  the  court  and  disobedience  thereof  (I.  C.  C.  v.  Brimson,  154  U.  S.,  447). 


JURISDICTION  OP  COURTS  241 

specific  powers  in  the  one  class  of  cases  above  mentioned.  Should  its 
orders  or  decrees,  made  in  the  course  of  such  a  proceeding,  be  dis- 
obeyed, or  should  one  otherwise  deport  himself  contrary  to  the  well- 
known  rules  of  conduct,  the  court  doubtless  has  the  power  to  punish. 
Such  power  is,  however,  subject  to  the  regulating  statute  (sec.  725, 
E.  S.) : 

The  said  courts  [of  the  United  States]  shall  have  power  *  *  *  to  punish, 
by  fine  or  imprisonment,  at  the  discretion  of  the  court,  contempts  of  their  author- 
ity: Provided,  That  such  power  to  punish  contempts  shall  not  be  construed  to 
extend  to  any  cases  except  the  misbehavior  of  any  person  in  their  presence,  or 
so  near  thereto  as  to  obstruct  administration  of  justice,  the  misbehavior  of  any 
of  the  officers  of  said  court  in  their  official  transactions,  and  the  disobedience  or 
resistance  by  any  such  officer,  or  by  any  party,  juror,  witness,  or  other  person, 
to  any  lawful  writ,  process,  order,  rule,  decree,  or  command  of  the  said  courts. ' ' 

The  provisions  of  section  12,  giving  to  the  courts  power  to  compel 
answer  to  a  question  before  the  Commission  is  not  unconstitutional : 

INSTANCE. — In  I.  C.  C.  v.  Brimson  (154  U.  S.,  447)  the  Supreme  Court  sus- 
tained the  constitutionality  of  section  12  of  the  act,  holding  that  it  did  not  in- 
vest the  circuit  courts  of  the  United  States  with  functions  which  were  not  judi- 
cial, saying,  "that  a  judgment  of  the  circuit  court  of  the  United  States  de- 
termining the  issues  presented  by  the  petition  of  the  Interstate  Commerce  Com- 
mission and  by  the  answers  of  appellees,  will  be  a  legitimate  exertion  of  judicial 
authority  in  a  case  or  controversy  to  which,  by  the  Constitution,  the  judicial 
power  of  the  United  States  extends.  And  a  final  order  by  that  court  dismissing 
the  petition  of  the  Commission,  or  requiring  the  appellees  to  answer  the  questions 
propounded  to  them,  and  to  produce  the  books,  papers,  etc.,  called  for,  will  be  a 
determination  of  questions  upon  which  a  court  of  the  United  States  is  capable 
of  acting  and  which  may  be  enforced  by  judicial  process.  If  there  is  any  legal 
reason  why  appellees  should  not  be  required  to  answer  the  questions  put  to  them, 
or  to  produce  the  books,  papers,  etc.,  demanded  of  them,  their  rights  can  be  recog- 
nized and  enforced  by  the  court  below  when  it  enters  upon  the  consideration  of 
the  merits  of  the  questions  presented  by  the  petition." 

The  court  has  power  to  punish  an  employee  of  the  carrier,  although 
the  employee  was  not  a  party  to  the  suit  and  was  not  served  with 
the  injunction." 

One  is  not  entitled  to  a  trial  by  jury  in  a  contempt  proceeding ; M 
but  an  order  or  judgment  of  a  circuit  court  finding  a  person  not  a 
party  to  the  suit  guilty  of  contempt  in  having  violated  a  restraining 
order,  is  reviewable  by  writ  of  error  in  the  appropriate  Circuit  Court 
of  Appeals." 

Sec.  175.  Jurisdiction  and  power  of  Federal  courts  to  grant  injunc- 
tions.— The  jurisdiction  and  power  of  the  Federal  courts  to  grant  in- 
junctions in  cases  brought  before  them,  including  cases  involving  in- 
terstate commerce,  is  derived  from  the  Constitution  and  the  acts  of  the 
Congress  conferring  jurisdiction.  Article  III,  section  1,  reads: 

The  judicial   Power   of  the  United   States,   shall  be  vested  in   one   supreme 

"In  re  Lennon  (166  U.  S.,  548). 

"In  re  Debs  (158  U.  S.,  654). 

"Bessette  v.  Conkey  Co.  (194  U.  S.,  324). 


242  JURISDICTION  OF  COURTS 

Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time  to  time  or- 
dain and  establish.     * 

Section  2  reads: 

The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and  Equity,  arising  under 
this  Constitution,  the  Laws  of  the  United  States,  and  Treaties  made,  or  which 
shall  be  made,  under  their  Authority; — to  all  Cases  affecting  Ambassadors,  other 
public  Ministers  and  Consuls; — to  all  Cases  of  admiralty  and  maritime  Jurisdic- 
tion;— to  Controversies  to  which  the  United  States  shall  be  a  Party; — to  Contro- 
versies between  two  or  more  States; — between  a  State  and  Citizens  of  another 
State  claiming  Lands  under  Grants  of  different  States,  and  between  a  State,  or 
State; — between  Citizens  of  different  States; — between  Citizens  of  the  same 
the  Citizens  thereof,  and  foreign  States,  Citizens  or  Subjects. 

Cases  where  the  subject-matter  is  interstate  commerce  arise  either 
under  the  Constitution  or  the  laws  of  the  United  States.88 

The  general  equity  jurisdiction  of  Federal  courts  and  their  power 
was  provided  by  the  sixteenth  section  of  the  original  judiciary  act  of 
1789,  which  provided  that,  "Suits  in  equity  shall  not  be  sustained  in 
either  of  the  courts  of  the  United  States,  in  any  case  where  plain, 
adequate,  and  complete  remedy  may  be  had  at  law."  This  provision 
was  a  reiteration  of  the  chancery  jurisdiction  of  England  in  the  ad- 
ministration of  equitable  remedies. 

The  chancery  jurisdiction  of  the  Federal  courts  is  the  same  in  all 
of  them  and  the  same  rules  of  decision  apply  in  each : 

INSTANCE. — In  Boyle  v.  Zacharie  (6  Pet.,  648),  a  case  involving  equity  juris- 
diction and  practice,  particularly  with  respect  to  injunctions  in  the  circuit  courts 
of  the  United  States,  the  Supreme  Court  stated  the  doctrine  relating  to  equitable 
jurisdiction  and  the  authority  to  issue  injunctions  as  follows :  ' '  The  chancery 
jurisdiction  given  by  the  Constitution  and  laws  of  the  United  States  is  the  same 
in  all  the  States  of  the  Union,  and  the  rule  of  decision  is  the  same  in  all.  In 
the  exercise  of  that  jurisdiction  the  courts  of  the  United  States  are  not  governed 
by  the  State  practice;  but  the  act  of  the  Congress  of  1792  (ch.  36),  has  pro- 
vided that  the  modes  of  proceeding  in  equity  suits  shall  be  according  to  the  prin- 
ciples, rules  and  usages  which  belong  to  courts  of  equity,  as  contradistinguished 
from  courts  of  law.  And  the  settled  doctrine  of  this  court  is,  that  the  remedies 
in  equity  are  to  be  administered,  not  according  to  the  State  practice,  but  accord- 
ing to  the  practice  of  courts  of  equity  in  the  parent  country,  as  contradistinguished 
from  that  of  courts  of  law;  subject,  of  course,  to  the  provisions  of  the  acts  of 
the  Congress,  and  to  such  alterations  and  rules  as  in  the  exercise  of  the  powers 
delegated  by  those  acts,  the  courts  of  the  United  States  may,  from  time  to  time, 
prescribe. ' ' 

The  courts  of  the  United  States  are  specifically  authorized  by  the 
interstate  commerce  act  to  issue  writs  of  injunction  where  a  carrier 
has  failed  or  neglected  to  obey  an  order  of  the  Commission,  other  than 
for  the  payment  of  money,  either  at  the  suit  of  the  party  injured  or  by 
the  Commission  (sec.  16) ;  and  in  the  enforcement  of  such  writ  of  in- 
junction, or  other  process,  mandatory,  or  otherwise,  the  circuit  court 

"In  re  Lennon  (166  U.  S.,  548). 


JURISDICTION  OP  COURTS  243 

has  those  powers  ordinarily  exercised  by  it  in  compelling  obedience  to 
its  writs  of  injunction  and  mandamus. 

Hearings  upon  an  application  for  preliminary  injunction  to  enjoin, 
set  aside,  annul,  or  suspend  an  order  or  requirement  of  the  Commis- 
sion are  to  be  held  before  three  circuit  judges  (or  two  circuit  and  one 
district  judge),  irrespective  of  the  certificate  provided  for  in  the  act 
of  February  11,  1903.58 

The  cases  brought  to  enjoin  departures  from  published  tariffs  are : 
sion  are  to  be  held  before  three  circuit  judges  (or  two  circuit  and  one 
1903) : 

(a)  Before  the  passage  of  the  Elkins  law  (act  of  February  19, 
1903) : 

U.  S.  ex  rel.  v.  Mo.  Pac.  E.  Co.  (Circuit  Court,  Kansas).— July  26,  1896,  orig- 
inal proceedings  to  restrain  defendants  from  discriminating  in  rates  against 
Wichita,  Kans. ;  July  — ,  1897,  injunction  granted;  May  23,  1900,  Circuit  Court  of 
Appeals  affirmed  decree  of  Circuit  Court;  March  9,  1903,  Supreme  Court  reversed 
Circuit  Court  of  _  Appeals  and  remanded  case  to  circuit  court  for  further  pro- 
ceedings. This  case  also  construed  for  the  first  time  certain  sections  of  the 
Elkins  law,  which  had  just  been  passed  (65  Fed.,  903;  189  U.  S.,  274). 

U.  S.  y.  A.,  T.  &  S.  F.  B.  Co.  (Circuit  Court,  Western  District,  Missouri). — 
March  18,  1902,  petition  filed  to  enjoin  departure  from  published  tariff  rates 
on  certain  commodities  from  Missouri  Eiver  points  to  Atlantic  seaboard;  March 
25,  1902,  temporary  injunction  granted;  June  2,  1902,  demurrer  filed;  May  8, 
1903,  demurrer  overruled;  May  25,  1903,  answer  filed;  May  10,  1907,  dismissed 
by  plaintiff  without  prejudice. 

(NOTE. — Similar  proceedings  at  the  same  time,  in  the  same  court,  were  taken 
against  the  following  railroads:  C.  E.  I.  &  P.  E.  Co.,  May  4,  1908,  dismissed 
by  plaintiff  without  prejudice;  C.,  B.  &  Q.  E.  Co.,  May  10,  1907,  dismissed  by 
plaintiff  without  prejudice;  C.  M.  &  St.  P.  E.  Co.,  May  10,  1907,  dismissed  by 
plaintiff  without  prejudice;  C.  &  A.  E.  Co.,  May  10,  1907,  dismissed  by  plaintiff 
without  prejudice;  C.  G.  W.  B.  Co.,  May  10,  1907,  dismissed  by  plaintiff  with- 
out prejudice;  M.  P.  E.  Co.,  May  9,  1908,  dismissed  by  plaintiff  without  preju- 
dice; Wabash  E.  Co.,  May  4,  1908,  dismissed  by  plaintiff  without  prejudice.) 

U.  S.  v.  C.  &  N.  W.  E.  Co.  (Circuit  Court,  Illinois).— March  20,  1902,  petition 
filed  to  enjoin  departure  from  published  tariff  rates  on  certain  commodities  from 
Missouri  Eiver  points  to  Atlantic  seaboard;  March  24,  1902,  temporary  injunc- 
tion granted;  April  24,  1903,  amended  temporary  injunction  granted  so  as  to  be 
issued  under  the  Elkins  law;  June  2,  1903,  answer  filed;  June  19,  1903,  referred 
to  master  to  take  testimony. 

(NOTE. — Similar  proceedings  at  the  same  time,  in  the  same  court,  were  taken 
against  the  following  railroads:  I.  C.  E.  Co.,  M.  C.  E.  Co.,  P.  Co.,  P.  C.  C.  and 
St.  L.  B.  Co.,  and  L.  S.  &  M.  S.  E.  Co.) 

(6)  Since  the  passage  of  the  Elkins'  law  (act  of  February  19, 
1903)  : 

U.  S.  v.  C.  &  O.  E.  Co.  (Circuit  Court,  Virginia).— July  13,  1903,  petition  filed 
under  the  interstate  commerce  act  and  Elkins  law  to  restrain  the  Chesapeake 
and  Ohio  from  giving  preferences  and  rebates  in  coal  rates  to  the  N.  Y.,  N.  H. 

58  An  act  to  expedite  the  hearing  and  determination  of  suits  in  equity,  etc.,  ap- 
proved February  11,  1903. 


244  JURISDICTION  OF  COURTS 

&  H.  R.  Co.;  February  19,  1904,  injunction  granted;  February  19,  1906, 
Supreme  Court  affirmed  circuit  court  (128  Fed.,  59;  200  U.  S.,  361). 

U.  S.  v.  Milwaukee  Refrigerator  Transit  Co.  (Circuit  Court,  Wisconsin). — 

,  1905,  petition  filed  under  the  Elkins  law  for  an  injunction  to  prevent 

payment  of  rebates  on  shipments  of  beer;  May  31,  1906,  circuit  court  granted 
injunction  as  to  all  defendants  except  the  Pabst  Brewing  Company.  The  other 
defendants  were  the  Pere  Marquette  Railroad  Company,  Erie  Railroad  Company, 
Chicago,  Rock  Island  and  Pacific  Railroad  Company,  St.  Louis  and  San  Francisco 
Railroad  Company,  Wisconsin  Central  Railroad  Company,  and  Chicago  and  Alton 
Railroad  Company  (145  Fed.,  1007). 

U.  S.  v.  C.,  I.  &  L.  R.  Co.  (Circuit  Court,  Northern  Illinois). — June  19,  1907, 
petition  filed  under  section  3  of  the  Elkins  law  to  enjoin  said  company  from  de- 
viating from  its  published  tariffs.  Case  pending. 

U.  S.  v.  U.  S.  Exp.  Co.  (Circuit  Court,  Northern  Illinois). — July  2,  1907,  pe- 
titions filed  under  section  2  of  the  Elkins  law  to  test  law  with  reference  to  the 
issuance  of  franks  by  said  companies;  July  2,  1907,  stipulations  and  answers 
filed;  April  22,  1908,  injunction  granted  prohibiting  the  issuance  of  franks,  ex- 
cept as  provided  for  in  the  act;  operation  of  injunction  suspended  until  Decem- 
ber, 1908,  to  allow  Supreme  Court  to  pass  on  the  question ;  May  18,  1908,  appealed 
to  Supreme  Court. 

U.  S.  v.  M.  P.  R.  Co.  (Circuit  Court,  Western  Missouri). — July  11,  1908,  petition 
filed  under  section  20  of  the  act  of  June  29,  1906,  for  mandatory  injunction  to 
restrain  defendants  from  departing  from  their  tariff  on  grain  originating  west  of 
the  Missouri  River.  Case  pending. 


CHAPTER  X 

PLEADING  AND  PRACTICE  BEFORE  THE  FEDERAL  COURTS  IN 
INTERSTATE  COMMERCE  CASES 


Sec.  176.  Pleadings. — It  is  not  within  the  scope  of  this  work  to  make 
any  extended  comments  upon  pleading  in  cases  where  the  subject- 
matter  is  interstate  commerce,  and  the  practitioner  is  referred  to  the 
general  works  upon  the  subject.1  It  is  sufficient  to  refer  to  the  stat- 
utes and  rules  respecting  the  pleadings  in  Federal  courts. 

PLEADINGS  IN  LAW  CAUSES 

It  is  provided  by  section  914,  Revised  Statutes,  that — 

the  practice,  pleadings,  forms  and  modes  of  proceeding  in  civil  causes,  other 
than  equity  and  admiralty  causes,  in  the  circuit  and  district  courts,  shall  con- 
form, as  near  as  may  be,  to  the  practice,  pleadings,  and  forms  and  modes  of  pro- 
ceeding existing  at  the  time  in  like  causes  in  the  courts  of  record  of  the  State 
within  which  such  circuit  or  district  courts  are  held,  any  rule  of  court  to  the  con- 
trary notwithstanding. 

PLEADINGS  IN  EQUITY  CAUSES 

The  test  of  equitable  jurisdiction  having  been  met,2  the  provisions 
of  section  913,  Revised  Statutes,  apply : 

The  forms  of  mesne  process  and  the  forms  and  modes  of  proceeding  in  suits  of 
equity  *  *  *  in  the  circuit  and  district  courts  shall  be  according  to  the 
principles,  rules,  and  usages  which  belong  to  courts  of  equity,  *  *  *  except 
when  it  is  otherwise  provided  by  statute  or  by  rules  of  court  made  in  pur- 
suance thereof;  but  the  same  shall  be  subject  to  alteration  and  addition  by  the 
said  courts,  *  *  *  and  to  regulation  by  the  Supreme  Court,  by  rules  pre- 
scribed, from  time  to  time,  to  any  circuit  or  district  court,  not  inconsistent  with 
the  laws  of  the  United  States. 

1Rose,  Code  of  Federal  Procedure;  Beach,  Modern  Equity  Practice;  Daniell, 
Chancery  Practice;  Elliott,  Appellate  Procedure;  Stephens,  Pleading  (Andrews); 
Story,  Equity  Pleading;  Bates,  Federal  Equity  Procedure:  Foster,  Federal  Prac- 
tice; Garland  and  Ealston,  Federal  Practice;  Hughes,  Federal  Procedure;  Love- 
land,  Forms  of  Federal  Practice;  May,  U.  S.  Supreme  Court  Practice;  Taylor, 
Jurisdiction  and  Procedure  of  the  United  States  Supreme  Court. 

2  The  test  of  equitable  jurisdiction  is  provided  by  section  723,  Eevised  Statutes: 
' '  Suits  in  equity  shall  not  be  sustained  in  either  of  the  courts  of  the  United 
States  in  any  case  where  a  plain,  adequate,  and  complete  remedy  may  be  had  at 
law. ' ' 


246  PLEADING  AND  PRACTICE — COURTS 

Under  this  provision  the  several  rules  of  the  Federal  courts  apply, 
and  in  the  absence  of  any  rule  covering  a  specific  matter  it  is  to  be 
governed  by  rule  90  of  the  Supreme  Court :  * 

In  all  eases  where  the  rules  prescribed  by  this  court  or  by  the  circuit  court  do 
not  apply,  the  practice  of  the  circuit  court  shall  be  regulated  by  the  present 
practice  of  the  high  court  of  chancery  in  England,  so  far  as  the  same  may  rea- 
sonably be  applied  consistently  with  the  local  circumstances  and  local  conve- 
niences of  the  district  where  the  court  is  held,  not  as  positive  rules,  but  as  fur- 
nishing just  analogies  to  regulate  the  practice. 

Sec.  177.  Parties  in  proceedings  before  the  court. — In  suits  brought 
by  the  Commission  to  enforce  its  order,  under  the  provisions  of  sec- 
tion 16,  such  of  the  carriers  against  whom  the  order  is  made  who 
have  failed  or  neglected  to  obey  the  order  may  be  made  parties  de- 
fendant. It  is  not  necessary  that  all  carriers  against  whom  an  order 
was  made  be  made  defendants ;  thus,  where  parties  were  numerous  and 
all  the  defenses  would  be  raised  by  carriers  forming  a  through  route, 
they  alone  were  made  parties  defendant/ 

PARTIES  IN  INTERSTATE  COMMERCE  CASES 

Cases  where  the  subject-matter  of  a  suit  is  interstate  commerce 
are  subject  to  the  usual  rules  respecting  parties  in  Federal  courts, 
except  as  those  rules  have  been  changed  or  modified  by  the  statute. 

Section  914  of  the  Revised  Statutes  has  been  held  to  apply  to 
parties,5  thus  imposing  upon  the  Federal  courts  in  common-law 
cases  the  duty  of  following  a  State  law  concerning  parties,  plaintiffs 
or  defendants,  and  misjoinder,  nonjoinder,  and  substitution  of  parties. 

The  interstate  commerce  act  modifies  the  general  requirement  re- 
specting parties  as  follows: 

(a)  Under  the  provisions  of  section  16  in  suits  to  enforce  an  order 
of  the  Commission  awarding  damages — 

parties  in  whose  favor  the  Commission  may  have  made  an  award  for  damages 
by  a  single  order  may  be  joined  as  plaintiffs,  and  all  of  the  carriers  parties  to 
such  order  awarding  such  damages  may  be  joined  as  defendants,  and  such  suit 
may  be  maintained  by  such  joint  plaintiffs  and  against  such  joint  defendants  in 
any  district  where  any  one  of  such  joint  plaintiffs  could  maintain  such  suit 
against  any  one  of  such  joint  defendants;  and  service  of  process  against  any  one 
of  such  defendants  as  may  not  be  found  in  the  district  where  the  suit  is  brought 
may  be  made  in  any  district  where  such  defendant  carrier  has  its  principal  oper- 
ating office.  In  case  of  such  joint  suit  the  recovery,  if  any,  may  be  by  judgment 
in  favor  of  any  one  of  such  plaintiffs,  against  the  defendant  found  to  be  liable 
to  such  plaintiff. 

(&)  Under  the  provisions  of  section  2  of  the  Elkins'  law — 
in  any  proceeding  for  the  enforcement  of  the  provisions  of  the  statutes  relating 

*  Promulgated  March  2,  1842  (1  How.,  box). 

•I.  C.  C.  v.  L.  S.  &  M.  S.  B.  (202  U.  S.,  613;  143  Fed.,  942);  cf.  Natl.  Hay 
Assn.  v.  L.  S.  &  M.  S.  E.  (9  I.  C.  C.,  264). 

"Pritchard  v.  Norton  (106  U.  S.,  124),  Albany  Ins.  Co.  v.  Lumberg  (121  U. 
S.,  451),  Hale  v.  Tyler  (104  Fed.,  761). 


PLEADING  AND  PRACTICE — COURTS  247 

to  interstate  commerce,  whether  such  proceedings  be  instituted  before  the  Inter- 
state Commerce  Commission  or  be  begun  originally  in  any  circuit  court  of  the 
United  States,  it  shall  be  lawful  to  include  as  parties,  in  addition  to  the  carrier, 
all  persons  interested  in  or  affected  by  the  rate,  regulation,  or  practice  under 
consideration,  and  inquiries,  investigations,  orders,  and  decrees  may  be  made  with 
reference  to  and  against  such  additional  parties  in  the  same  manner,  to  the 
same  extent,  and  subject  to  the  same  provisions  as  are  or  shall  be  authorized  by 
law  in  respect  to  carriers. 

(c)  Under  the  provisions  of  section  3  of  the  Elkins'  law,  in  pro- 
ceedings brought  by  the  Interstate  Commerce  Commission  to  prevent 
the  carriage  of  passengers  or  freight  traffic  at  less  than  the  published 
rates,  or  discriminations  forbidden  by  the  law  all  orders,  writs  and 
process — 

may  be  enforceable  as  well  against  the  parties  interested  in  the  traffic  as  against 
the  carrier. 

All  carriers  participating  in  through  transportation  are  proper 
parties : 

INSTANCE. — In  I.  C.  C.  v.  S.  P.  Co.  (74  Fed.,  42)  it  was  held  that  where  sev- 
eral carriers  are  operated  under  common  control,  management,  and  arrangement 
and  establish  a  rate  interdicted  by  the  Commission  the  charging  by  one  of  the 
carriers  of  the  rate  in  a  particular  district  for  property  to  be  transported  over 
the  various  lines  is  in  disobedience  of  the  order  in  such  district  under  section  16 
of  the  act,  so  as  to  give  the  circuit  court  jurisdiction  to  enforce  the  order  against 
all  companies.  All  such  carriers  are  proper  parties. 

But  not  a  necessary  party : 

INSTANCE.— In  T.  &  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  197)  one  of  the  objections 
urged  to  the  decree  of  the  circuit  court  was  that,  as  the  order  of  the  Commis- 
sion involves  rates  participated  in  by  the  Southern  Pacific  Company,  as  owner  of 
a  portion  of  the  line  over  which  the  through  freight  is  carried,  that  company  was 
a  necessary  party.  "Undoubtedly  that  company  would  have  been  a  proper 
party,  but  we  agree  with  the  circuit  court  in  thinking  that  it  was  not  a  neces- 
sary one." 

Although  one  of  the  carriers  be  beyond  the  geographical  jurisdic- 
tion of  the  court : 

INSTANCE.— In  I.  C.  C.  v.  T.  &  P.  E.  Co.  (57  Fed.,  948)  it  was  held  that  the 
court  can  enforce  an  order  against  a  carrier  party  to  a  joint  rate  within  the 
geographical  jurisdiction  of  the  court,  although  another  carrier  is  without  its 
jurisdiction  and  service  thereon  can  not  be  had. 

In  suits  brought  to  enjoin,  set  aside,  annul,  or  suspend  an  order  or 
requirement  of  the  Commission  a  carrier,  against  whom  an  order  has 
been  issued  or  requirement  made  may  be  a  party  complainant. 

Should  certain  carriers  against  whom  the  order  has  been  made  not 
wish  to  join  as  parties  complainant,  it  would  doubtless  be  correct  to 
make  them  parties  defendant  in  accordance  with  the  usual  equity 
rules. 

The  practice  concerning  parties  defendant  in  such  suits  is  not 


248  PLEADING  AND  PRACTICE — COURTS 

uniform.  In  two  cases '  the  original  complainant  before  the  Commis- 
sion was  made  a  party  as  well  as  the  Commission ;  in  other  cases  the 
Commission  alone  was  made  party  defendant.  The  better  practice 
and  the  one  more  frequently  followed  is  to  make  the  original  com- 
plainants before  the  Commission  and  the  Commission  defendants  in 
such  proceedings. 

Sec.  178.  Requisites  of  a  bill  to  enforce  an  order  of  the  Commission. — 
In  an  action  brought  by  the  Commission  to  enforce  its  order,7  under 
the  provisions  of  section  16,  the  bill  must  set  out  such  facts  as  show 
proper  procedure  in  the  case  before  the  Commission,  and  such  facts, 
including  the  disobedience  of  the  order  as  will  entitle  the  Commission 
to  equitable  relief,  under  the  well  defined  limits  of  equity  jurisdic- 
tion and  the  statute  giving  authority  to  apply  to  the  circuit  courts 
and  conferring  jurisdiction  thereon. 

Such  a  bill  sets  up:  (a)  the  organization  of  the  Commission,  (6) 
the  filing  of  the  original  complaint,  (c)  the  answers  of  the  defendant, 
(<2)  the  hearings,  (e)  the  report  of  the  Commission,  (/)  the  order  of 
the  Commission,  (g)  the  service  of  the  order,  and  (h)  the  disobedience 
or  failure  to  obey  the  order  of  the  Commission;  the  prayers  of  such 
a  bill  in  a  usual  case  are:  for  a  preliminary  mandatory  injunction 
commanding  the  carrier  to  comply  with  the  order,  for  a  permanent 
injunction  for  general  relief,  and  for  process  (see  Form  12,  Appen- 
dix). 

The  exhibits  usually  are  the  report  and  order  of  the  Commis- 
sion; and  it  is  proper  also  to  attach  a  copy  of  the  original  petition 
and  answer. 

Appeals  from  a  petition  instituted  by  the  Commission,  or  by  any 
party  injured  because  of  the  failure  of  a  carrier  to  obey  an  order 
other  than  for  the  payment  of  money,  under  the  provisions  of  section 
16  lie  by  either  party  from  the  circuit  court  to  the  Supreme  Court 
of  the  United  States,  and  in  such  court  the  case  is  to  have  priority  in 
hearing  and  determination  over  all  other  causes  except  criminal 
causes. 

Sec.  179.  Requisites  of  a  bill  to  enjoin,  set  aside,  or  annul  an  order 
of  the  Commission. — Subject  to  special  circumstances  or  facts  which 
may  be  present  in  peculiar  cases,  in  filing  a  bill  in  the  circuit 
court  when  the  defeated  defendant  before  the  Commission  desires  to 

8  D.  L.  &  W.  E.  Co.  v.  I.  C.  C.,  and  Preston  &  Davis  before  circuit  court  of  the 
United  States  for  southern  district  of  New  York,  June  1907,  and  D.  L.  &  W.  E. 
Co.  v.  I.  C.  C.  and  Eailway  Valley  E.  Co.,  before  the  same  court,  June,  1908.  Cf. 
section  165. 

7  Since  the  passage  of  the  act  of  June  29,  1906  (34  Stat.  L.,  584),  no  pro- 
ceeding has  been  instituted  by  the  Commission  to  enforce  its  order,  as  the  present 
statute  makes  the  orders  of  the  Commission  self-executing  unless  the  carrier 
against  which  the  order  was  issued  secures  an  injunction  against  its  enforcement 
(see  section  165). 


PLEADING  AND  PRACTICE — COURTS  249 

attack  an  order  or  requirement  of  the  Commission,  the  bill  must  show 
such  facts  as  will  give  a  court  of  equity  jurisdiction.  It  is  doubted  if 
the  statute  does  or  could  give  to  the  circuit  courts  of  the  United  States 
jurisdiction  to  hear  or  determine,  sitting  as  a  court  of  equity,  a  cause 
which  would  not  be  cognizable  by  such  courts.  The  cause  of  action 
as  made  out  by  the  bill  must  be  such  as  to  fall  within  the  well  de- 
fined rules  of  equity  jurisdiction.8 

A  bill  filed  for  this  purpose,  and  in  fact  all  pleadings,  as  to  their 
contents,  is  governed  by  the  general  rules  applicable  to  pleadings  in 
equity.' 

A  bill  brought  under  the  provisions  of  section  16  to  enjoin,  set 
aside,  annul,  or  suspend  an  order  or  requirement  of  the  Commission 
ought  to  contain :  (a)  a  description  of  parties  complainant,  including 
their  occupation,10  (&)  a  description  of  the  Interstate  Commerce  Com- 
mission, with  reference  to  the  statute  under  which  it  is  organized,  (c) 
a  description  of  the  other  defendants,  if  any,  being  the  original 
parties  complainant  before  the  Commission,  (d)  the  filing  of  the  pe- 
tition by  the  original  complainant  before  the  Commission,  (e)  the 
hearing  by  the  Commission,  (/)  the  report  and  order  of  the  Commis- 
sion, (g)  the  denial  of  the  application  for  a  rehearing,  if  any,  (h) 
the  equities  of  the  present  complainants  and  their  interest  in  the 
proceedings,  (•&)  the  inequities  which  would  result  by  reason  of  the 
enforcement  of  the  order  or  requirement  to  the  present  complainants, 
and  in  appropriate  cases,  to  the  business  interests  of  localities,  if 
such  be  the  fact,  (j)  allegations  to  the  effect  that  the  order  or  re- 
quirement is  unreasonable,  unjust,  oppressive,  and  unlawful,  with 
sufficient  specifications  of  fact  to  support  such  allegations,  (fc)  that 
if  the  order  or  requirement  be  enforced  it  will  subject  the  complainant 
to  multiplicity  of  suits  for  penalties  under  the  act  to  regulate  com- 
merce, (I)  that  the  Commission  will  institute  or  cause  to  be  insti- 
tuted by  the  original  parties  complainant  suits  for  penalties.  The 
prayers  of  such  a  bill  generally  are:  for  interlocutory  or  temporary 
order  suspending  the  Commission's  order  or  requirement,  for  a  per- 
petual injunction,  for  a  temporary  order  of  the  court  to  the  effect 
that  if  delay  shall  result  in  the  hearing  of  the  bill  the  Commis- 
sion 's  order  shall  be  suspended  pending  hearing,  the  usual  prayer  for 
general  relief,  and  the  prayer  for  process  (see  Forms  13,  14,  14a,  and 
14b,  Appendix). 

Upon  the  filing  of  a  suit  to  enjoin,  set  aside,  annul,  or  suspend  an 
order  or  requirement  of  the  Commission  it  is  the  usual  practice  of 

*Pomeroy,  Equity  Jurisprudence;  Snell,  Equity. 

*  See  Rose,  Federal  Procedure ;  Foster,  Federal  Practice ;  Daniell,  Chancery 
Practice,  and  other  standard  works  upon  the  general  subject. 

10  If  parties  complainant  be  receivers  the  bill  must  show  by  what  court  they 
were  appointed. 


250  PLEADING  AND  PRACTICE — COURTS 

the  Commission  to  extend,  if  the  exigencies  of  the  case  require,  the 
date  on  which  the  order  is  to  become  effective;  and,  in  cases  of  im- 
portance, to  ask  the  Attorney-General  to  file  a  certificate  of  general 
public  importance  provided  for  by  the  expediting  act  of  February  11, 
1903  (see  section  173). 

Sec.  180.  Requisites  of  a  bill  to  enjoin  a  rate  or  practice  effective  in 
the  future. — Bills  in  Federal  courts  to  enjoin  a  rate  or  practice  ef- 
fective in  the  future  may  be  filed  by  the  Interstate  Commerce  Com- 
mission under  section  3  of  the  Elkins  law,  or  by  the  users  of  trans- 
portation facilities  under  the  broad  equity  jurisdiction  to  prevent  a 
multiplicity  of  suits  and  other  well-known  equitable  grounds. 

A  bill  filed  to  enjoin  the  taking  effect  in  the  future  ought  to  be 
filed  before  the  rate  actually  is  in  effect,"  otherwise  the  laches  of  the 
complainant  may  prevent  the  court  issuing  a  temporary  injunction. 
If  time  permits  a  rule  to  show  cause  should  be  sought;  otherwise, 
which  is  more  often  the  case,  an  ex  parte  application  for  a  temporary 
injunction  may  be  made  at  the  time  of  the  filing  of  the  bill. 

The  requisites  of  such  a  bill,  in  addition  to  the  formal  allegations, 
are  (a)  that  the  present  rates,  as  per  tariffs  and  schedules  are  rea- 
sonable and  just,  and  remunerative  to  the  carriers;  (&)  that  there  has 
been  filed  with  the  Interstate  Commerce  Commission  tariffs  and  sched- 
ules providing  for  certain  other  rates  greater  than  the  present  rates 
and  that  said  new  rates  are  to  become  effective  on  a  certain  named 
date;  (c)  that  the  complainant,  or  some  other  on  his  behalf,  has  filed 
with  the  Commission  a  complaint,  alleging  that  said  new  rates  are  un- 
reasonable and  unjust;  (d)  that  the  Commission  has  no  authority  to 
stay  the  taking  effect  of  said  new  rates;  (e)  that  said  new  rates  are 
unreasonably  high  and  will  afford  to  the  carrier  a  greater  compensa- 
tion than  it  is  permitted  by  law  to  receive;  and  (/)  that  the  com- 
plainant is  remediless  save  by  the  interposition  of  a  court  of  equity. 

If  it  be  claimed  that  the  rates  will  be  unduly  prejudicial  to  or  make 
an  unjust  discrimination  against  persons,  commodities  or  localities  ap- 
propriate allegations  to  such  effect  ought  to  added. 

If  the  bill  attack  a  new  regulation  or  practice  affecting  rates  under 
section  15  of  the  act,  and  no  such  regulation  be,  at  the  time  of  filing 
of  the  bill,  in  force  and  effect,  it  may  be  alleged,  that  the  regulation 
or  practice  is  unnecessary  as  well  as  unreasonable,  unjust,  and  un- 
duly discriminatory. 

Sec.  181.  Answers. — 

ANSWER  OF  THE  COMMISSION  TO  A  BILL  BROUGHT  TO  ENJOIN,  SET  ASIDE, 
ANNUL,  OR  SUSPEND  ITS  ORDER  OR  REQUIREMENT 

Where  bill  has  been  filed  by  a  carrier  defendant  before  the  Com- 
u  See  sec.  166,  ante. 


PLEADING  AND  PRACTICE — COURTS  251 

mission  to  enjoin,  set  aside,  annul,  or  suspend  an  order  or  re- 
quirement of  the  Commission,  the  Commission  in  general  does  not 
deny  the  equities  of  the  complaint  as  matters  of  law  or  question  the 
jurisdiction  of  the  court.  The  answer  must  necessarily  set  up  the 
proceeding  before  the  Commission  and  traverse  the  allegations  of 
fact  tending  to  show  the  rights  of  the  complainant  to  have  the  order 
or  requirement  set  aside  or  enjoined. 

The  answer  usually  contains  (a)  the  organization  and  establishing 
of  the  Commission  by  the  interstate  commerce  act,  (6)  the  authority 
of  the  Commission  to  execute  and  enforce  the  provisions  of  the  act 
(sec.  12),  (c)  authority  of  the  Commission  under  section  13  of  the 
act  to  receive  complaints  from  complainants  of  the  character  specified, 
(d)  the  filing  on  a  certain  date  of  a  complaint  by  a  complainant  such 
as  is  required  under  the  provisions  of  the  law,  (e)  the  filing  of  an- 
swers by  the  defendants,  (/)  the  holding  of  a  hearing  or  hearings, 
(g)  the  making  of  argument,  (h)  such  matters  and  things  as  tend 
to  dispute  the  facts  alleged  in  the  bill,  (i)  a  general  denial  of  all 
matters  of  fact  alleged  in  the  bill  not  specifically  answered,  and  0') 
finally,  a  prayer  to  dismiss  hence  with  reasonable  costs. 

It  is  customary  that  a  copy  of  the  petition  before  the  Commission, 
of  the  answer  of  the  defendant,  and  of  the  report  and  order  of  the 
Commission  be  filed  as  exhibits  to  the  answer. 

ANSWER  OF   CARRIER   TO  A  BELL   BROUGHT  TO  ENFORCE  AN  ORDER   OR  RE- 
QUIREMENT OF  THE  COMMISSION 

In  an  answer  by  a  carrier  to  a  bill  brought  to  enforce  an  order  of 
the  Commission  the  carrier  generally  admits  the  authority  of  the 
Commission  to  file  the  bill  and  the  regularity  of  the  proceedings  below, 
but  denies  the  correctness  of  the  facts  alleged  in  the  bill,  or,  at  least, 
that  such  facts  constitute  a  violation  of  the  act.  In  instances  where 
the  Commission,  prior  to  the  passage  of  the  last  amendment  to  the 
law,  had  fixed  rates  for  the  future,  either  by  direct  order  or  by  re- 
quiring change  in  classification,  the  jurisdiction  of  the  Commission  to 
make  such  an  order  was  attacked  upon  the  ground  that  such  an  order 
was  not  a  ' '  lawful  order. ' ' 

Sec.  182.  Practice. — The  usual  rules  of  practice  in  Federal  courts 
apply  in  cases  involving  rights  under  the  interstate  commerce  acts, 
subject  only  to  the  exceptions  provided  in  those  laws ;  these  exceptions 
are: 

(a)  In  matters  of  evidence;  (&)  such  exceptions  as  must  prevail 
where  one  relies  upon  a  statutory  right;13  (c)  in  the  expedition  of 

11  The  courts  are  only  authorized  to  enforce  ' '  a  lawful  order. ' ' 
13  See  sec.  72  and  note  7. 


252  PLEADING  AND  PRACTICE COURTS 

suits  provided  for  by  act  approved  February  11,  1903,1*  incorporated 
into  the  interstate  commerce  act  as  applicable  to  suits  to  enjoin,  set 
aside,  annul,  or  suspend  an  order  or  requirement  of  the  Commission 
(sec.  16)  and  in  the  ElMns'  law  to  equity  cases  brought  by  the  Attor- 
ney-General in  the  name  of  the  Interstate  Commerce  Commission  to 
prevent  the  carriage  of  traffic  or  passengers  at  less  than  the  pub- 
lished rates,  or  to  prevent  discriminations  (sec.  3)  and,  under  the 
provisions  of  section  16,  hearing  on  preliminary  injunction,  and 
to  proceedings  in  equity  to  enforce  the  order  or  requirement  of  the 
Commission  as  specified  in  the  provisions  of  the  act  to  regulate  com- 
merce; (d)  in  appeals,  to  be  taken  from  an  entry  of  order  or  de- 
cree (either  interlocutory  or  final)  within  thirty  days;  appeals  from 
an  order  of  the  circuit  court  to  enforce  an  order  of  the  Commission 
other  than  for  the  payment  of  money,  to  be  by  either  party  direct  to 
the  Supreme  Court,  where  such  cases  have  priority  in  hearing  and 
determination  over  all  causes  except  criminal  causes,  but  such  ap- 
peals not  to  affect  Or  suspend  the  order  appealed  from;  in  appeals 
from  orders  of  the  circuit  courts  granting  or  continuing  injunctions 
against  the  order  of  the  Commission,  where  the  appeal  is  direct  to  the 
Supreme  Court,  and  where  the  case  takes  precedence  over  all  other 
causes  except  causes  of  a  like  character  and  criminal  causes;  and  in 
equity  cases,  by  the  act  of  February  11,  1903,  when  appeals  lie  direct 
to  the  Supreme  Court  and  must  be  taken  within  sixty  days  from  the 
entry  of  the  order;  and  in  appeals  in  suits  brought  under  section  3 
of  the  Elkins'  law,  to  prevent  the  transportation  of  passengers  or 
freight  at  less  than  the  published  rates,  and  to  prevent  discrimina- 
tions as  provided  by  law. 

Sec.  183.  Certificate  of  general  public  importance. — The  provisions 
of  the  act  of  February  11,  1903,15  where  there  is  a  suit  in  equity 
pending  before  a  circuit  court  under  the  act  to  regulate  commerce, 
make  it  a  condition  precedent  to  the  expediting  of  cases  that  the  At- 
torney-General shall  file  with  the  clerk  of  the  court  a  certificate  that, 
in  his  opinion,  the  case  is  of  general  public  importance."  The  At- 

uAn  act  to  expedite  the  hearing  and  determination  of  suits  in  equity  pending 
or  hereafter  brought  under  the  act  of  July  2,  1890,  entitled  "An  act  to  protect 
trade  and  commerce  against  unlawful  restraints  and  monopolies,"  "An  act  to 
regulate  commerce,"  approved  February  4,  1887,  or  any  other  acts  having  a  like 
purpose  that  may  be  hereafter  enacted  (see  sec.  173). 

"An  act  to  expedite  the  hearing  and  determination  of  suits  in  equity  pending 
or  hereafter  brought  under  the  act  of  July  2,  1890,  entitled  "An  act  to  protect 
trade  and  commerce  against  unlawful  restraints  and  monopolies,"  "An  act  to 
regulate  commerce,"  approved  February  4,  1887,  or  any  other  acts  having  a 
like  purpose  that  may  be  hereafter  enacted  (see  sec.  173). 

19  It  will  be  observed  that  the  statute  specifically  provides  for  equity  suits 
wherein  the  United  States  is  complainant;  nevertheless,  the  certificate  has  been 
filed  where  common  carriers  subject  to  the  act  have  been  parties  complainant 
(see  Stickney  v.  Interstate  Commerce  Commission,  United  States  circuit  court  for 
the  northern  district  of  Illinois,  May,  1908;  cf.  sec.  165). 


PLEADING  AND  PRACTICE — COURTS  253 

torney-General  may  file  such  a  certificate  in  proceedings  brought 
under  section  3  of  the  Elkins  law,  as  well  as  in  proceedings  brought 
by  the  carrier  under  the  provisions  of  section  16.  At  the  request  of 
the  Interstate  Commerce  Commission  the  certificate  is  usually  issued 
as  a  matter  of  course.  The  practice  is  to  file  the  certificate  with  the 
clerk,  who  is  required  by  the  act  to  immediately  furnish  to  each  of  the 
circuit  judges  of  the  circuit  a  copy  thereof.  The  case  is  thereafter  to 
be  given  precedence  over  other  cases  and  in  every  way  to  be  expedited 
and  assigned  for  hearing  at  the  earliest  practical  date;  but  not  less 
than  three  of  the  circuit  judges  of  the  circuit  are  necessary,  if  there 
be  three  or  more ;  and  if  there  be  not  more  than  two  circuit  judges, 
then  it  is  provided  that  one  district  judge,  who  with  the  two  circuit 
judges  selected,  shall  act. 

If  upon  hearing  the  case  the  three  judges  are  divided  in  opinion 
the  case  is  certified  to  the  Supreme  Court  for  review  in  like  manner 
as  if  same  had  been  taken  there  by  an  appeal.  Such  appeal  (or  cer- 
tificate) must  be  made  within  sixty  days  from  the  entry  thereof." 

The  provisions  of  the  expediting  act  are  specifically  made  to  apply 
to  proceedings  brought  by  the  Commission  in  the  courts  to  enforce  its 
order  or  requirement,  or  any  of  the  provisions  of  the  act  to  regulate 
commerce,  or  amendatory  or  supplemental  acts  (sec.  16). 

Sec.  184.  Assigning  claims. — Where  one  has  a  right  to  recover  from 
a  carrier  for  damages  for  overcharges  under  sections  8  and  9  of  the 
act  such  right  is  a  property  right  which  may  be  assigned.18 

Sec.  185.  Practice  in  injunction. — The  jurisdiction  of  the  Federal 
courts  to  grant  restraining  orders  follows  from  the  general  equity 
jurisdiction  of  those  tribunals.  In  the  exercise  of  such  jurisdiction 
the  court  might  grant  a  restraining  order,  either  in  the  suit  brought 
by  the  Commission  to  enforce  its  order  or  a  suit  brought  by  a 
carrier  to  enjoin,  set  aside,  annul,  or  suspend  an  order  or  requirement 
of  the  Commission.  In  the  former  case,  a  restraining  order  could  be 
granted  ex  parte ;  but  in  the  latter,  it  is  provided  by  section  16 — 
that  no  injunction,  interlocutory  order  or  decree,18  suspending  or  restraining 
the  enforcement  of  an  order  of  the  Commission  shall  be  granted,  except  on  hear- 
ing, after  not  less  than  five  days  notice  to  the  Commission. 

This  provision  is  applicable  whether  or  not  the  certificate  of  general 
public  importance  has  been  filed  in  the  suit. 

In  suits  brought  to  enforce  an  order  of  the  Commission  a  prelim- 
inary injunction  will  not  be  granted,  if  the  answer  denies  the  facts : 

INSTANCE. — In  I.  C.  C.  v.  L.  V.  E.  Co.  (49  Fed.,  177),  where  an  answer  denies 
the  facts  alleged  in  the  complaint,  a  preliminary  injunction  will  not  be  granted 

17  Sec.  2  of  the  expediting  act,  Appendix,  post. 
"Edmunds  v.  I.  C.  E.  Co.  (80  Fed.,  78). 

18  This  language  is  probably  broad  enough  to  cover  a  restraining  order  as  well 


254  PLEADING  AND  PRACTICE — COURTS 

(see  also  Shinkle  v.  L.  &.  N.  R.  Co.,  62  Fed.,  690;  I.  C.  C.  v.  C.  N.  O.  &  T.  P. 
B.  Co.,  64  Fed.,  981). 

A  preliminary  injunction  is  usually  granted  on  terms : 
INSTANCE.— In  I.  C.  C.  v.  C.  N.  O.  &  T.  P.  R.  Co.  (64  Fed.,  981),  in  an  ap- 
plication made  by  the  complainant  that  if  the  defendants  are  to  be  permitted, 
after  denial  of  preliminary  injunction,  to  charge  the  interdicted  rates  they  be 
compelled  to  keep  an  account  with  shippers  and  deposit  the  excess  in  court,  it 
was  held  that  such  an  application  ought  not  to  be  granted  unless  there  was  a 
showing  of  right  in  favor  of  the  complainant  to  such  an  extent  as  would  author- 
ize the  granting  of  a  preliminary  injunction. 

And  this  rule  applies  whether  the  suit  be  for  the  purpose  of  en- 
forcing the  order  of  the  Commission,  or  for  the  purpose  of  suspend- 
ing an  order,  or  to  prevent  the  taking  effect  of  a  rate  or  practice  in 
the  future. 

Sec.  186.  Leave  of  court  not  necessary  to  sue  receiver. — Prior  to  the 
statute  of  March  3,  1887,  it  was  held  that  a  receiver  could  not  be 
sued  concerning  property  which  he  held  in  a  fiduciary  capacity  with- 
out the  consent  of  the  appointing  court.20  By  that  act,  however,  as 
amended  by  the  act  of  August  13,  1888,  chapter  866,  it  was  provided : 

SEC.  3.  That  every  receiver  or  manager  of  any  property  appointed  by  any  court 
of  the  United  States  may  be  sued  in  respect  of  an  act  or  transaction  of  his  in 
carrying  on  the  business  connected  with  such  property,  without  the  previous  leave 
of  the  court  in  which  such  receiver  or  manager  was  appointed;  but  such  suit 
shall  be  subject  to  the  general  equity  jurisdiction  of  the  court  in  which  such 
receiver  or  manager  was  appointed  so  far  as  the  same  may  be  necessary  to  the 
ends  of  justice. 

Under  this  section  any  court  having  jurisdiction  of  the  parties  and 
the  subject-matter  may  entertain  an  action  where  it  originates  in  any 
transaction  by  the  receiver  in  carrying  on  the  business  connected  with 
the  property,  and  the  complainant  is  not  limited  to  the  forum  ap- 
pointing the  receiver,  nor  to  a  Federal  court.21 

In  cases  which  do  not  fall  clearly  under  the  statutory  provision  leave 
to  sue  the  receiver  must  be  obtained.22 

The  preservation  of  general  equity  jurisdiction  over  suits  instituted 

as  an  interlocutory  injunction.  "A  temporary  restraining  order  is  distinguished 
from  an  interlocutory  injunction  in  that  it  is  ordinarily  granted  merely  pending 
the  hearing  of  a  motion  for  a  temporary  injunction  and  its  life  ceases  with  the 
disposition  of  that  motion  and  without  further  order  of  the  court,  while,  as  we 
have  seen,  an  interlocutory  injunction  is  usually  granted  until  the  coming  in  of 
an  answer  or  until  the  final  hearing  of  the  cause,  and  stands  as  a  binding  restraint 
until  rescinded  by  the  further  action  of  the  court"  (High,  Injunctions,  sec.  3). 

"Davis  v.  Gray  (16  Wall.,  218),  Barton  v.  Barbour  (104  U.  S.,  128),  Peale  v. 
Phipps  (14  How.,  374). 

»Erb  v.  Morash  (177  U.  S.,  584),  T.  &  P.  R.  Co.  v.  Johnson  (151  U.  S.,  81), 
T.  &  P.  R.  Co.  v.  Cox  (145  U.  S.,  593),  McNulta  v.  Lockridge  (141  U.  S.,  327), 
Central  Trust  Co.  v.  E.  T.  V.  &  G.  R.  Co.  (59  Fed.,  523),  St.  Nicholas  (49  Fed., 
671). 

"Minot  v.  Mastin  (95  Fed.,  737). 


PLEADING  AND  PRACTICE — COURTS  255 

against  receivers  without  leave  does  not  make  it  competent  for  the  ap- 
pointing court  to  determine  the  rights  of  persons  who  are  not  before 
it  or  subject  to  its  jurisdiction : 

INSTANCE.— In  T.  &  P.  E.  Co.  v.  Johnson  (151  TJ.  S.,  81)  it  was  said:  "The 
preservation  of  general  equity  jurisdiction  over  suits  instituted  against  receivers 
without  leave  does  not,  in  promotion  of  the  ends  of  justice,  make  it  competent 
for  the  appointing  court  to  determine  the  rights  of  persons  who  are  not  before 
it  or  subject  to  its  jurisdiction;  and  the  right  to  sue  without  resorting  to  the  ap- 
pointing court,  which  involves  the  right  to  obtain  judgment,  can  not  be  assumed 
to  have  been  rendered  practically  valuless  by  this  further  provision  in  the  same 
section  of  the  statute  which  granted  it. ' ' 

Leave  of  court  is  not  required  in  order  to  sue  before  the  Commis- 
sion: 

INSTANCE. — In  Evans  v.  U.  P.  E.  Co.  (6  I.  C.  C.,  520)  the  Commission  held  that 
prior  leave  of  court  appointing  a  receiver  was  not  necessary  to  entitle  a  shipper 
to  complain  in  a  petition  to  the  Commission,  and,  further,  that  such  leave  is  not 
necessary  to  give  the  Commission  jurisdiction  in  a  proceeding.  In  this  case  the 
carrier  was  made  a  party  defendant,  and  subsequently  a  receiver  was  appointed 
therefor.  An  order  was  made  by  the  Commission  substituting  the  receiver  a 
party  defendant  and  directing  service  of  the  complaint  and  notice  to  satisfy  it 
or  file  answer  within  the  usual  time. 

Sec.  187.  Removal  of  causes  from  State  court  to  Federal  court. — As 
has  been  seen,23  a  State  court  has  no  jurisdiction  to  take  cognizance 
of  rights  granted  by  the  interstate  commerce  acts,  and  where  a  State 
court  has  no  jurisdiction  the  Federal  court  can  have  no  jurisdiction 
on  removal.  Where,  however,  a  State  court  has  jurisdiction  of  a  mat- 
ter involving  interstate  commerce,  being  for  the  enforcement  of  rights 
not  granted  by  the  act,  such  suit  may  be  removed  to  the  Federal 
courts  upon  compliance  with  the  usual  rules  respecting  the  removal 
of  causes.24 

Sec.  188.  Special  counsel. — The  Commission  is  authorized,  under 
section  16,  with  the  consent  of  the  Attorney-General,  to  employ  spe- 
cial counsel  in  any  proceeding  under  the  act,  the  expenses  of  such 
employment  to  be  paid  out  of  the  appropriation  for  the  Commission. 
Under  such  authorization  the  Commission  from  time  to  time,  as 
occasion  requires,  employs  special  counsel.  The  more  frequent  in- 
stances at  present  are  to  defend  suits  brought  to  set  aside,  annul,  or 
suspend  an  order  of  the  Commission.  The  attorney  for  the  com- 
plainant before  the  Commission  is  usually  employed  because  of  his 
knowledge  of  the  facts  of  the  case. 

23  See  sec.  156.     For  practice  on  removal  the  standard  works  on  Federal  pro- 
cedure may  be  consulted. 

24  Governed  by  act  of  August  13,  1888,  c.  866  (25  Stat.  L.,  433),  amending  act 
Of  March  3,  1875. 


256  PLEADING  AND  PRACTICE — COURTS 

Sec.  189.  Attorneys'  fees. — One  in  whose  favor  the  Commission  has 
made  an  order  for  the  payment  of  money  and  who  has  brought  an 
action  in  the  circuit  court  for  the  enforcement  thereof,  if  he  shall 
prevail,  is,  by  section  16,  to  be  allowed  a  reasonable  attorney's  fee, 
to  be  taxed  and  collected  as  a  part  of  the  costs  of  the  suit. 


CHAPTER  XI 
EVIDENCE  BEFOBE  THE  COUBTS 


Sec.  190.  Bules  of  evidence  prescribed  by  the  acts. — The  rules  of  evi- 
dence prescribed  by  the  interstate  commerce  acts  are : 

(a)  Under  the  provisions  of  section  14  the  "authorized  publications 
[of  the  Commission]  shall  be  competent  evidence  of  the  reports  and 
decisions  of  the  Commission  therein  contained  in  all  courts  of  the 
United  States *  and  of  the  several  States a  without  any  further  proof 
or  authentication  thereof;" 

(&)  Under  the  provisions  of  section  16,  "the  findings  and  order  of 
the  Commission  shall  be  prima  facie  evidence  of  the  facts  therein 
stated,"  in  proceedings  brought  in  the  circuit  courts  for  the  enforce- 
ment of  an  order  for  the  payment  of  money ;  * 

(c)  Under  section  16  the  registry  mail  receipt  shall  be  prima  facie 
evidence  of  the  receipt  of  such  order  (of  the  Commission)  by  the 
carrier  in  due  course  of  mail; 

(d)  Under  the  provisions  of  section  16  "the  copies  of  schedules  and 
tariffs  of  rates,  fares,  and  charges,  and  of  all  contracts,  agreements, 
or  arrangements  between  common  carriers  filed  with  the  Commission 
*     *     *     and  the  statistics,  tables,  and  figures  contained  in  the  an- 
nual reports  of  carriers  made  to  the  Commission,  shall  be  preserved 
as  public  records  in  the  custody  of  the  secretary  of  the  Commission, 
and  shall  be  received  as  prima  facie  evidence  of  what  they  purport  to 

1  The  right  of  Congress  to  prescribe  rules  of  evidence  for  the  Federal  courts 
does  not  seem  to  be  open  to  question.  It  has  been  provided  that  in  trials  at  com- 
mon law  the  local  rules  of  evidence  shall  prevail,  and  this  provision  has  been 
held  binding,  although  some  cases  have  asserted  a  right  to  disregard  the  pro- 
vision (Connecticut,  etc.,  Ins.  Co.  v.  Union,  etc.,  Co.,  112  U.  S.,  255;  Eemington 
v.  Linthicum,  14  Pet.,  91;  Bucher  v.  Cheshire  E.,  125  U.  S.,  583;  Hinds  v.  Keith, 
57  Fed.,  10;  Stewart  v.  Morris,  89  Fed.,  290;  TJ.  P.  E.  Co.  v.  Eeed,  80  Fed.,  239; 
Lonergan  v.  Miss.  Co.,  5  Fed.,  778;  Albro  v.  Manhattan,  etc.,  Ins.  Co.,  119  Fed., 
629;  Belding  v.  Hebard,  103  Fed.,  532;  Parker  v.  Moore,  11  Fed.,  470).  Cases 
disregarding  the  right  are  U.  P.  E.  Co.  v.  Yates  (79  Fed.,  589),  and  Shea  v. 
Leisy  (85  Fed.,  245). 

'  Similar  provisions  relating  to  editions  of  Federal  Statutes  are  in  sec.  908, 
Eevised  Statutes. 

•In  C.  H.  &  D.  E.  Co.  v.  I.  C.  C.  (206  U.  S.,  142)  the  Court  said:  "The  stat- 
ute gives  prima  facie  effect  to  the  findings  of  the  Commission,  and,  when  those 
findings  are  concurred  in  by  the  circuit  court,  we  think  they  should  not  be  in- 
terferred  with  unless  the  record  establishes  that  clear  and  unmistakable  error  has 
been  committed"  citing  C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  184),  and 
L.  &  N.  E.  Co.  v.  Behlmer  (175  U.  S.,  648),  affirmed  in  I.  C.  E.  Co.  v.  I.  C.  C. 
(206  U.  S.,  441). 


258  EVIDENCE — COURTS 

be  for  the  purpose  of  investigations  by  the  Commission  and  in  all 
judicial  proceedings ; ' ' 

(e)  Under  the  provisions  of  section  16  "copies  or  extracts  from  any 
of  said  schedules,  tariffs,  contracts,  agreements,  arrangements,  or  re- 
ports made  pubb'c  records  as  aforesaid  (see  preceding  paragraph), 
certified  by  the  secretary  under  its  [Commission's]  seal,  shall  be  re- 
ceived in  evidence  with  like  effect  as  the  originals ; ' ' 

(/)  Under  the  provisions  of  section  20  the  receipt,  judgment,  or 
transcript  of  the  amount  paid  by  an  initial  carrier  for  loss,  damage, 
or  injury  to  property  may  serve  as  evidence  on  behalf  of  said  initial 
carrier  to  recover  from  the  carrier  on  whose  line  the  loss,  damage,  or 
injury  occurred. 

(g)  Under  the  provisions  of  section  1  of  the  Elkins  law  the  filed 
and  published  rates  in  any  prosecution  under  that  law  as  against  the 
carrier,  its  officers,  or  agents,  "shall  be  conclusively  deemed  to  be 
the  legal  rate."4 

(h)  Under  the  provisions  of  section  17  that  the  official  seal  of  the 
Commission  shall  be  judicially  noticed. 

Sec.  191.  Competency  of  witnesses. — The  competency  of  witnesses  in 
civil  cases  in  the  Federal  courts  is  now  governed  by  the  provisions  of 
the  act  of  June  29,  1906,"  reading: 

The  competency  of  a  witness  to  testify  in  any  civil  action,  suit  or  proceeding, 
in  the  courts  of  the  United  States  shall  be  determined  by  the  laws  of  the  State  or 
Territory  in  which  the  court  is  held.6 

Sec.  192.  Compelling  attendance  of  witnesses  before  Commission. — 
The  courts  are  authorized,  under  section  12  of  the  act,  to  require  the 
attendance  of  witnesses  before  the  Commission  to  give  testimony; 
and,  under  the  same  section,  in  the  case  of  contumacy  or  refusal  to 
obey  a  subpoena,  the  circuit  court  may  issue  an  order  requiring  the 
person  to  appear  and  give  evidence  touching  the  matter  in  question. 

This  provision  of  the  law  is  coupled  with  one  of  the  immunity  pro- 
visions (see  section  146),  for  the  witness  usually  obeys  the  subpoena 
but  declines  to  testify  on  the  ground  that  the  evidence  might  in- 
criminate him. 

Where  the  witness  refuses  to  testify  there  are  framed  a  sufficient 
number  of  questions  to  indicate  the  purpose  of  the  particular  por- 

*  The  constitutional  right  of  the  legislature  to  provide  a  conclusive  rule  of  evi- 
dence must  be  doubted,  particularly  in  criminal  cases,  as  such  a  rule,  if  strictly 
enforced,  would  prevent  the  prisoner  from  introducing  evidence  tending  to  show 
want   of  intent,   or  even  to  show  the  attending  facts  and  circumstances;    and, 
further,  such  a  rule  would  deny  to  the  prisoner  the  presumption  of  innocence. 
See  instructive  note  by  A.  C.  Freeman,  editor  American  State  Reports  (People  v. 
Cannon,  139  N.  Y.  32;  36  Am.  St.  Sep.). 

5 "An  act  to  amend  section  158  of  the  Revised  Statutes  of  the  United  States." 

*  The  statutes  affecting  the  qualifications  of  witnesses  in  the  State  courts  will 
be  found  briefed  in  Wigmore  on  Evidence,  section  488. 


EVIDENCE — COURTS  259 

tion  of  the  examination.  To  each  of  the  questions  the  witness  usually 
declines  to  answer  on  the  ground  stated. 

While  the  statute  provides  (sec.  12)  that  the  Commission  or  any 
party  to  a  proceeding  may  invoke  the  aid  of  the  court  yet  the  pro- 
ceedings are  usually  instituted  by  the  Commission. 

The  proceeding  is  initiated  by  filing  in  the  circuit  court  a  petition 
setting  up  the  organization  of  the  Commission,  the  subject-matter  of 
the  investigation,  whether  a  general  investigation  brought  by  the  Com- 
mission or  a  proceeding  with  parties  complainant  and  defendant,  and 
such  an  abstract  of  the  evidence  as  tends  to  show  the  materiality  and 
relevancy  of  the  questions  which  have  been  propounded  to  the  wit- 
ness and  which  he  refuses  to  answer  and  concludes  with  a  prayer  for 
the  order  in  accordance  with  the  statute. 

Such  a  proceeding  to  compel  the  attendance  of  witnesses  before  the 
Commission  is  not  unconstitutional  because  imposing  nonjudicial  du- 
ties upon  the  court,  and  the  proceeding  constitutes  a  case  or  contro- 
versy to  which  the  judicial  power  of  the  United  States  extends.7 

Where  there  are  several  witnesses  a  single  petition  may  suffice,  for 
the  court  can  issue  separate  orders  in  each  case.8 

Sec.  193.  Evidence  in  civil  and  criminal  cases. — The  rules  of  evi- 
dence in  criminal  cases  in  Federal  courts  are  the  rules  existing  in  the 
several  States  at  the  adoption  of  the  judiciary  act  (1789),  as  modi- 
fied by  subsequent  acts  of  Congress. 

The  judiciary  act  of  1789,  chapter  20,  section  34,  provided : 
The  laws  of  the  several  States,  except  where  the  Constitution,  treaties  or  Stat- 
utes of  the  United  States  shall  otherwise  require  or  provide,  shall  be  regarded  as 
rules  of  decision  in  trials  at  common  law,  in  Courts  of  the  United  States,  in 
cases  where  they  apply. 

Sections  858 "  and  721 10  of  the  Revised  Statutes  have  been  held  not 

7 1.  C.  C.  v.  Brimson  (154  U.  S.,  448),  reversing  the  judgment  of  the  circuit 
court  of  the  United  States  for  the  northern  district  of  Illinois  (53  Fed.,  476). 

•I.  C.  C.  v.  P.  &  E.  E.  Co.  (123  Fed.,  970). 

'Section  858,  Eevised  Statutes:  "In  the  courts  of  the  United  States  no  wit- 
ness shall  be  excluded  in  any  action  on  account  of  color,  or  in  any  civil  action 
because  he  is  a  party  to  or  interested  in  the  issue  tried:  Provided,  That  in  ac- 
tions by  or  against  executors,  administrators,  or  guardians,  in  which  judgment  may 
be  rendered  for  or  against  them,  neither  party  shall  be  allowed  to  testify  against 
the  other,  as  to  any  transaction  with,  or  statement  by,  the  testator,  intestate,  or 
ward,  unless  called  to  testify  thereto  by  the  opposite  party,  or  required  to  testify 
thereto  by  the  court.  In  all  other  respects,  the  laws  of  the  State  in  which  the 
court  is  held  shall  be  the  rules  of  decision  as  to  the  competency  of  witnesses  in 
the  courts  of  the  United  States  in  trials  at  common  law,  and  in  equity  and 
admiralty. ' ' 

By  the  act  of  June  29,  1906  (34  Stat.  L.,  618),  this  section  was  amended  so 
as  to  read :  ' '  The  competency  of  a  witness  to  testify  in  any  civil  action,  suit  or 
proceeding  in  the  courts  of  the  United  States  shall  be  termined  by  the  laws  of  the 
State  or  Territory  in  which  the  court  is  held." 

10  Section  721,  Eevised  Statutes,  is  the  same  as  section  34,  judiciary  act  of  1789, 
quoted  supra, 


260  EVIDENCE — COURTS 

to  apply  to  criminal  cases,  upon  the  ground  that  criminal  cases  are 
not  included  under  the  term  ''trials  at  common  law."  The  result  is, 
as  stated  by  Wigmore"  that  "the  Federal  rules  for  criminal  trials 
are  determinable  by  an  artificial  and  unpractical  test,  which  merely 
creates  useless  obscurity." 

The  rules  of  evidence  applicable  in  equity  proceedings  are  those  of 
the  respective  States  where  the  cause  is  held,  under  the  provisions  of 
section  858,  Revised  Statutes : 

In  all  other  respects  [save  the  qualifications  of  witnesses]  the  laws  of  the 
State  in  which  the  court  is  held  shall  be  the  rules  of  decision  as  to  the  competency 
of  witnesses  in  the  courts  of  the  United  States  in  trials  at  common  law,  and  in 
equity  and  admiralty. 

This  provision  has  generally  received  a  narrow  construction  by  the 
Federal  courts,  and  it  is  doubted  if  any  general  rules  can  be  laid 
down  concerning  the  relevancy  and  materiality  of  evidence  in  the 
Federal  courts  other  than  is  found  in  standard  works  upon  evidence 
and  the  decisions. 

The  rules  respecting  the  manner  of  taking  evidence  in  equity  pro- 
ceedings is  provided  by  the  statutes  of  the  United  States  and  Rules 
of  the  Supreme  Court." 

uWigmore  on  Evidence,  sec.  6. 

"  Section  862,  Revised  Statutes :  ' '  The  mode  of  proof  in  causes  of  equity 
*  *  *  shall  be  according  to  rules  now  or  hereafter  prescribed  by  the  Supreme 
Court,  except  as  herein  specially  provided. ' ' 

Rules  of  the  Supreme  Court:  "Rule  67.  After  the  cause  is  at  issue,  com- 
missions to  take  testimony  may  be  taken  out  in  vacation  as  well  as  in  term, 
jointly  by  both  parties,  or  severally  by  either  party,  upon  interrogatories  filed 
by  the  party  taking  out  the  same  in  the  clerk's  office,  ten  days'  notice  thereof  being 
given  to  the  adverse  party  to  file  cross-interrogatories  before  the  issuing  of  the 
Commission;  and  if  no  cross-interrogatories  are  filed  at  the  expiration  of  the 
time  the  Commission  may  issue  ex  parte.  In  all  cases  the  commissioner  or  com- 
missioners may  be  named  by  the  court  or  by  a  judge  thereof;  and  the  presiding 
judge  of  the  court  exercising  jurisdiction  may,  either  in  term  time  or  in  vaca- 
tion, vest  in  the  clerk  of  the  court  general  power  to  name  commissioners  to  take 
testimony. 

"Either  party  may  give  notice  to  the  other  that  he  desires  the  evidence  to  be 
adduced  in  the  cause  to  be  taken  orally,  and  thereupon  all  the  witnesses  to  be 
examined  shall  be  examined  before  one  of  the  examiners  of  the  court,  or  before 
an  examiner  to  be  specially  appointed  by  the  court.  The  examiner,  if  he  so  re- 
quest, shall  be  furnished  with  a  copy  of  the  pleadings. 

"Such  examination  shall  take  place  in  the  presence  of  the  parties  or  their 
agents,  by  their  counsel  or  solicitors,  and  the  witnesses  shall  be  subject  to  cross- 
examination  and  re-examination,  all  of  which  shall  be  conducted  as  near  as  may 
be  in  the  mode  now  used  in  the  common-law  courts. 

"The  depositions  taken  upon  such  oral  examination  shall  be  reduced  to  writ- 
ing by  the  examiner,  in  the  form  of  question  put  and  answer  given ;  provided,  that 
by  consent  of  parties,  examiner  may  take  down  the  testimony  of  any  witness  in 
the  form  of  narrative. 

"At  the  request  of  either  party,  with  reasonable  notice,  the  deposition  of  any 
witness  shall,  under  the  direction  of  the  examiner,  be  taken  down  either  by  a  skill- 
ful stenographer  or  by  a  skillful  typewriter,  as  the  examiner  may  elect,  and 
when  taken  stenographically  shall  be  put  into  typewriting  or  other  writing; 
provided,  That  such  stenographer  or  typewriter  has  been  appointed  by  the  court, 
or  is  approved  by  both  parties. 

"The  testimony  of  each  witness,  after  such  reduction  to  writing,  shall  be  read 
over  to  him,  and  signed  by  him  in  the  presence  of  the  examiner  and  of  such  of 


EVIDENCE — COURTS  261 

Sec.  194.  Immunity  of  witnesses. — The  cases  M  brought  to  compel  an- 
swer to  questions  propounded  by  the  Commission  are: 

United  States  v.  Brine  (District  Court,  Ohio). — October  15,  1890,  proceeding 
for  contempt;  October  16,  1890,  rule  discharged. 

In  re  Counselman  (District  Court,  Illinois). — December  11,  1890,  application 
for  habeas  corpus  denied;  January  11,  1892,  appellant  discharged  from  custody 
by  order  of  United  States  Supreme  Court  (44  Fed.,  268;  142  U.  S.,  547). 

In  re  Peasley  (District  Court,  Illinois). — December  11,  1890,  application  for 
habeas  corpus  denied;  January  11,  1892,  prisoner  discharged,  following  the  Coun- 
selman case  (44  Fed.,  271). 

In  re  Brimson  (Circuit  Court,  Illinois). ,  1892,  application  for  order 

to  answer  questions  denied;  May  26,  1894,  Supreme  Court  reversed  circuit  court 
and  remanded  cause  for  further  proceedings  (53  Fed.,  476;  153  U.  S.,  447). 

In  re  Brown  (Circuit  Court,  Pennsylvania). — May  6,  1895,  adjudged  guilty  of 
contempt;  November  — ,  1895,  application  for  habeas  corpus  denied;  March  23, 
1896,  Supreme  Court  affirmed  the  circuit  court  in  its  action  whereby  Brown  was 
ordered  to  jail  for  refusing  to  testify  on  the  ground  of  self -crimination  (Sub. 
nom.  Brown  v.  Walker,  161  U.  S.,  591;  70  Fed.,  46). 

I.  C.  C.  v.  Baird  (Circuit  Court,  New  York).— April  22,  1903,  Baird  and  others, 
agents  of  certain  coal  roads,  declined  to  give  testimony  before  the  Commission  in 
the  Hearst  anthracite  coal-rate  investigation;  June  12,  1903,  circuit  court  denied 
the  motion  to  require  defendants  to  answer  the  questions;  April  4,  1904,  Supreme 

the  parties  or  counsel  as  may  attend;  provided  that  if  the  witness  shall  refuse  to 
sign  his  deposition  so  taken,  then  the  examiner  shall  sign  the  same,  stating  upon 
the  record  the  reasons,  if  any,  assigned  by  the  witness  for  such  refusal. 

"The  examiner  may,  upon  all  examinations,  state  any  special  matters  to  the 
court  as  he  shall  think  fit;  and  any  question  or  questions,  which  may  be  ob- 
jected to  shall  be  noted  by  the  examiner  upon  the  deposition,  but  he  shall  not 
have  power  to  decide  on  the  competency,  materiality,  or  relevancy  of  the  ques- 
tions; and  the  court  shall  have  power  to  deal  with  the  costs  of  incompetent, 
immaterial,  or  irrelevant  depositions  or  parts  of  them,  as  may  be  just. 

' '  In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn,  or  to  answer  any 
questions  put  by  the  examiner  or  by  counsel  or  solicitor,  the  same  practice  shall 
be  adopted  as  is  now  practiced  with  respect  to  witnesses  to  be  produced  on  ex- 
amination before  an  examiner  of  said  court  on  written  interrogatories. 

' '  Notice  shall  be  given  by  the  respective  counsel  or  solicitors  to  the  opposite 
counsel  or  solicitors,  or  parties,  of  the  time  and  place  of  the  examination,  for  such 
reasonable  time  as  the  examiner  may  fix  by  order  in  each  cause. 

"When  the  examination  of  witnesses  before  the  examiner  is  concluded,  the 
original  depositions,  authenticated  by  the  signature  of  the  examiner,  shall  be 
transmitted  by  him  to  the  clerk  of  the  court,  to  be  there  filed  of  record,  in  the 
same  mode  as  prescribed  in  section  865  of  the  Eevised  Statutes. 

"Testimony  may  be  taken  on  commission  in  the  usual  way,  by  written  inter- 
rogatories and  cross-interrogatories,  on  motion  to  the  court  in  term  time,  or  to 
a  judge  in  vacation,  for  special  reasons,  satisfactory  to  the  court  or  judge. 

"Where  the  evidence  to  be  adduced  in  a  cause  is  to  be  taken  orally,  as  be- 
fore provided,  the  court  may,  on  motion  of  either  party,  assign  a  time  within 
which  the  complainant  shall  take  his  evidence  in  support  of  the  bill,  and  a  time 
thereafter  within  which  the  defendant  shall  take  his  evidence  in  defense,  and  a 
time  thereafter  in  which  the  complainant  shall  take  his  evidence  in  reply;  and  no 
further  evidence  shall  be  taken  in  the  cause,  unless  by  agreement  of  the  parties 
or  by  leave  of  court  first  obtained,  on  motion  for  cause  shown. 

"The  expense  of  the  taking  down  of  depositions  by  a  stenographer  and  of  put- 
ting them  into  typewriting  or  other  writing  shall  be  paid  in  the  first  instance 
by  the  party  calling  the  witness,  and  shall  be  imposed  by  the  court,  as  part  of  the 
costs,  upon  such  party  as  the  court  shall  adjudge  should  ultimately  bear  them. 

"Upon  due  notice  given  as  prescribed  by  previous  order,  the  court  may,  at 
its  discretion,  permit  the  whole,  or  any  specific  part,  of  the  evidence  to  be  ad- 
duced orally  in  open  court  on  final  hearing." 

MFor  immunity  of  witnesses  generally,  see  sec.  146,  ante. 


262  EVIDENCE COURTS 

Court  reversed  the  circuit  court  and  remanded  the  cause  for  further  proceedings. 
In  this  case  further  construction  of  the  Elkins  law  was  made  (123  Fed.,  969 ; 
194  U.  S.,  25). 

In  re  Reichman  (District  Court,  Illinois). ,  1905,  Eeichman,  an  officer 

of  Street's  Western  Car  Lines,  refused  to  answer  certain  questions  put  to  him 
by  Commission.  The  proceedings  involved  excessive  charges  of  private  car  lines. 
Eeichman  contended  that  Elkins  law  did  not  apply  to  private  car  lines; —  — , 

1905,  proceedings  instituted  in  court  to  compel  Reichman  to  testify;  February  27, 

1906,  court  ordered  Eeichman  to  answer  the  questions,  and  construed  the  Elkins 
law  against  his  contention  (145  Fed.,  235). 

Sec.  195.  Weight  of  evidence  of  opinion  of  Commission. — Section  16 
of  the  act  provides  that  where  the  Commission  has  made  an  order  for 
the  payment  of  money,  and  a  bill  has  been  filed  to  enforce  the  order — 
that  on  a  trial  of  such  suit  the  findings  [of  fact]  and  order  of  the  Commission 
shall  be  prima  facie  evidence  of  the  facts  therein  stated." 

The  present  statute  is  silent  upon  the  weight  to  be  given  to  a  report 
and  order  of  the  Commission,  where  such  order  is  other  than  for  the 
payment  of  money.15  Former  section  16  provided  that  in  matters 
involving  an  order  or  requirement  founded  upon  a  controversy  re- 
quiring a  trial  by  jury,  as  provided  by  the  seventh  amendment  of  the 
Constitution — 

at  the  trial  of  (sic)  the  findings  of  fact  of  said  Commission  as  set  forth  in  its 
report  shall  be  prima  facie  evidence  of  the  matters  therein  stated. 

If  the  order  was  not  founded  upon  a  controversy,  requiring  a  trial 
by  jury,  the  proceeding  was  an  equitable  one,  and  upon  the  hearing 
the  findings  of  fact  were  made  prima  facie  evidence.18 

Mr.  Justice  Story  defined,  in  Keely  v.  Jackson  (6  Pet.,  622),  prima 
facie  evidence  as  follows: 

It  is  such  as,  in  judgment  of  law,  is  sufficient  to  establish  the  fact;  and,  if 
not  rebutted,  remains  sufficient  for  the  purpose.  The  jury  are  bound  to  consider 
it  in  that  light,  unless  they  are  invested  with  authority  to  disregard  the  rules 
of  evidence,  by  which  the  liberty  and  estate  of  every  citizen  are  guarded  and  sup- 
ported. No  judge  would  hesitate  to  set  aside  their  verdict  and  grant  a  new 

14  Under  a  similar  provision  of  the  former  section  it  was  held  that  where  a 
demurrer  was  interposed  the  findings  of  the  Commission  will  be  liberally  con- 
strued (I.  C.  C.  v.  C.  B.  &  Q.  E.  Co.,  94  Fed.,  272). 

"While  the  statute  is  silent  upon  this  subject  yet,  if  the  proceedings  be  shown 
to  be  regular,  the  courts  will  doubtless  give  great  weight,  not  to  say  consider  as 
prima  facie  evidence,  the  findings  of  fact  of  the  Commission.  This  on  the 
ground  that  the  Commission  are  experts.  Certainly  such  weight  will  be  given  to 
the  report  of  the  Commission  as  is  ordinarily  accorded  to  the  report  of  an  exam- 
iner in  chancery. 

16  The  findings  of  the  Commission  being  made  prima  facie  evidence  other  evi- 
dence may  be  interposed  to  overcome  them  (I.  C.  C.  v.  A.  T.  &  S.  F.  E.  Co., 
149  U.  S.,  264;  I.  C.  C.  v.  L.  V.  E.  Co.,  49  Fed.,  177;  I.  C.  C.  v.  L.  &  N.  E.  Co., 
73  Fed,  409;  I.  C.  C.  v.  S.  E.  Co.,  117  Fed.,  741;  I.  C.  C.  v.  A.  T.  &  S.  F.  B. 
Co.,  50  Fed.,  295;  I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E,  Co.,  56  Fed.,  925;  I.  C.  C.  v. 
E.  T.  V.  &  G.  E.  Co.,  85  Fed.,  107 ;  I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.,  64  Fed., 
904;  Ky.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.,  37  Fed.,  272;  U.  S.  v.  M.  P.  E.  Co.,  65 
Fed.,  903),  and  it  was  held  in  I.  C.  C.  v.  L.  V.  E.  Co.  (49  Fed.,  177)  that  no  ad- 
ditional weight  is  to  be  given  the  report  and  order  of  the  Commission  because  the 
Commission  was  the  complainant. 


EVIDENCE — COURTS  263 

trial  if,  under  such  circumstances,  without  rebutting  evidence,  they  disregard  it. 
It  would  be  error  on  their  part,  which  would  require  the  remedial  interposition 
of  the  court.  In  a  legal  sense,  then,  such  prima  facie  evidence  in  the  absence  of 
all  controlling  evidence,  or  discrediting  circumstances,  becomes  conclusive  of  the 
fact;  that  is,  it  should  operate  upon  the  minds  of  the  jury  as  decisive  to  found 
their  verdict  as  to  the  fact.  Such  we  understand  to  be  the  clear  principles  of  law 
on  this  subject. 

Sec.  196.  Introduction  into  conrt  of  testimony  given  before  the  Com- 
mission.— In  cases  brought  before  the  Federal  courts  either  to  en- 
force an  order  of  the  Commission  or  to  set  aside,  enjoin,  suspend,  or 
annul  an  order  or  requirement  it  is  customary  that  much  of  the  evi- 
dence adduced  before  the  Commission  be  made,  by  stipulation  of 
counsel,  a  part  of  the  record  of  the  court."  This  practice  has  ad- 
vantages in  that  the  expense  of  witnesses  before  the  court  or  before 
a  master  is  lessened;  also  the  time  of  the  court  or  master  and  coun- 
sel is  conserved.  Such  evidence  forms,  in  a  measure,  the  case  in  chief 
of  the  complainant,  but  one  is  not  limited  to  the  evidence  thus  intro- 
duced. The  right  to  introduce  additional  evidence 18  exists  subject 
to  the  usual  rules  of  materiality,  particularly  in  cases  brought  to 
enforce  an  order  of  the  Commission  for  such  a  proceeding  as  a  pro- 
ceeding de  novo™ 

Evidence  taken  before  the  Commission  is  not  a  part  of  the  court 
record  but  may  be  introduced  by  either  party : 

INSTANCE.— In  I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (64  Fed.,  981)  it  was  held 
that  evidence  taken  before  the  Commission  is  not  a  part  of  the  record  of  the 
court,  but  either  party  to  the  court  proceeding  may  introduce  testimony  taken 
before  the  Commission  which  is  competent  and  relevant. 

Sec.  197.  Certified  copies  to  be  admitted  as  evidence. — It  is  pro- 
vided by  section  16  of  the  act  that  the  copies  of  schedules,  tariffs,  and 
other  documentary  evidence  filed  with  the  Commission  are  to  be  pre- 
served as  public  records  in  the  custody  of  its  secretary  and  for  the 
purpose  of  investigations  by  the  Commission  and  in  all  judicial  pro- 
ceedings shall  be  received  as  prima  facie  evidence  of  what  they  pur- 
port to  be.  It  is  also  provided  that  copies  of  or  extracts  from  such 
documentary  evidence,  which  is  made  a  public  record,  if  certified  by 
the  secretary  under  the  seal  of  the  Commission,  shall  be  received  in 
evidence  with  like  effect  as  the  originals. 

Little  difficulty  can  arise  where  a  copy  of  an  entire  document  is 

"As  in  I.  C.  C.  v.  L.  S.  &  M.  S.  E.  (134  Fed.,  942)  and  in  S.  E.  Co.  v. 
Tift,  (138  Fed.,  753),  where  it  was  stipulated  by  counsel  that  the  testimony,  in- 
cluding the  exhibits  taken  before  the  Commission,  should  be  filed  in  the  case, 
subject  only  to  objections  to  its  relevancy. 

18  The  former  practice  of  the  carriers  of  withholding  evidence  before  the  Com- 
mission, introducing  it  only  when  the  matter  in  controversy  had  been  brought 
before  the  court,  was  condemned  by  the  Supreme  Court  in  C.  N.  O.  &  T.  P.  E. 
Co.  v.  L  C.  C.  (162  U.  S.,  184).  See  sec.  149,  ante. 

18  Ky.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (37  Fed.,  567),  I.  C.  C.  v.  C.  N.  O.  &  T.  P. 
E.  Co.  (56  Fed.,  925),  affirmed  in  162  U.  S.,  184. 


264  EVIDENCE — COURTS 

produced.  Occasions  arise,  however,  where  extracts  are  made,  which 
may  or  may  not  accurately  furnish  complete  evidence  of  the  point 
desired.  Thus,  an  entire  tariff  will  not  ordinarily  be  certified  to  if 
a  copy  must  be  made ;  if  a  printed  copy  is  available  it  may  be  certified. 
Where  one  desires  to  prove  the  correct  rate  applying  between  particu- 
lar points  upon  a  commodity  the  question  is  often  one  of  doubt,  owing 
to  the  complexity  of  tariffs  and  the  numerous  exceptions  to  the  gen- 
eral rules.  The  recent  movement  for  the  simplification  of  tariffs,  if 
accomplished,  will  minimize  the  difficulties  here  mentioned.  At  pres- 
ent, however,  it  is  not  infrequent  that  doubt  arises  concerning  what 
is  the  correct  and  legal  rate. 

Sec.  198.  Judicial  notice  of  seal  of  Commission. — The  courts  are,  by 
the  provisions  of  the  act  (sees.  16  and  17),  required  to  take  judicial 
notice  of  the  seal  of  the  Commission. 

The  practice  in  certifying  to  copies  of  schedules,  tariffs,  contracts, 
and  statistics  from  the  annual  reports  of  carriers  is  for  the  secretary 
of  the  Commission  to  certify  that  the  papers  to  which  the  certificate 
is  attached  are  true  copies  of  the  originals  now  on  file  in  the  office  of 
the  Commission,  whether  the  same  be  a  report  and  order  of  the  Com- 
mission or  copies  of  documents  filed  with  the  Commission. 

Sec.  199.  Accident  reports  not  to  be  used  as  evidence. — The  act  regu- 
lating commerce  provides,  in  section  20,  that  the  carriers  subject  to 
the  act  shall  report ' '  the  accidents  to  passengers,  employees,  and  other 
persons,  and  the  causes  thereof." 

The  act  approved  March  3,  1901  ,**  provides  for  the  filing  of  monthly 
reports  of  accidents,  and  for  a  penalty  for  failure  to  make  reports. 
Section  3  of  the  last-mentioned  act  provides: 

That  neither  said  report  nor  any  part  thereof  shall  be  admitted  as  evidence  or 
used  for  any  purpose  against  such  railroad  so  making  such  report  in  any  suit 
or  action  for  damages  growing  out  of  any  matter  mentioned  in  said  report. 

Sec.  200.  Fees  of  witnesses. — Witnesses  before  the  courts  are  enti- 
tled to  the  fees  provided  by  law.21 

20  An  act  requiring  common  carriers  engaged  in  interstate  commerce  to  make 
full  reports  of  all  accidents  to  the  Interstate  Commerce  Commission,  approved 
March  3,  1901  (31  Stat.  L.,  1446).  The  other  safety-appliance  acts  are  an  act 
to  promote  the  safety  of  employees  and  travelers  upon  railroads  by  compelling 
common  carriers  engaged  in  interstate  commerce  to  equip  their  cars  with  auto- 
matic couplers  and  continuous  brakes  and  their  locomotives  with  driving-wheel 
brakes,  etc.,  approved  Mar.  2,  1893  (27  Stat.  L.,  531),  as  amended  by  an  act  ap- 
proved April  1,  1896  (29  Stat.  L.,  85),  an  act  to  amend  an  act  entitled  an  act  to 
promote  the  safety  of  employees  and  travelers,  etc.,  approved  March  2,  1893, 
and  amended  April  1,  1896,  approved  March  2,  1903  (32  Stat.  L.,  943). 

11  Sec.  848,  Eevised  Statutes.    See  sec.  145,  ante. 


CHAPTER  XII 
APPEAL  AND  ERROR 


Sec.  201.  Appeal  in  criminal  cases. — The  interstate  commerce  act 
makes  no  provision  concerning  appeals  or  the  expedition  of  cases 
where  a  criminal  prosecution  for  alleged  violation  of  the  law  has  been 
brought.  The  special  provisions  relating  to  appeals  and  the  expedi- 
tion of  suits  apply  only  to  the  civil  proceedings.  It  follows,  therefore, 
that  the  general  rules  relating  to  appeals,  finality  of  decision,  and 
other  matters  apply  to  criminal  cases  brought  under  the  acts.1 

Sec.  202.  Appeals  direct  to  the  Supreme  Court. — 

UNDER  THE  ACT  OF  MARCH  3,   1891 

Under  section  5  of  the  act  *  establishing  the  circuit  courts  of  appeals 
it  is  provided  that  appeals  or  writs  of  error  may  be  taken  from  the 
district,  or  from  the  existing  circuit  courts  to  the  Supreme  Court  in 
the  following  cases: 

In  any  case  in  which  the  jurisdiction  of  the  court  is  in  issue;  in  such  cases  the 
question  of  jurisdiction  alone  shall  be  certified  to  the  Supreme  Court  from  the 

court  below  for  decision. 

******* 

In  any  case  that  involves  the  construction  or  application  of  the  Constitution  of 
the  United  States. 

In  any  case  in  which  the  constitutionality  of  any  law  of  the  United  States,  or 
the  validity  or  construction  of  any  treaty  made  under  its  authority,  is  drawn  in 
question. 

In  any  case  in  which  the  constitution  or  law  of  a  State  is  claimed  to  be  in  con- 
travention of  the  Constitution  of  the  United  States. 

UNDER  THE  ACT  OP  FEBRUARY  11,  1903 

Under  the  expediting  act,  the  provisions  of  which  are  made  appli- 
cable to  proceedings  under  the  act  to  regulate  commerce,  it  is  pro- 
vided : 

That  in  every  suit  in  equity  pending  or  hereafter  brought  in  any  circuit  court 

1  These  rules  will  be  found  in  any  of  the  standard  works  on  Federal  practice. 

An  effort  has  been  made  to  permit  the  Government  to  appeal  in  criminal  eases, 
as  is  allowed  in  several  of  the  States. 

*  In  I.  C.  C.  v.  A.  T.  &  S.  F.  E.  Co.  (149  U.  S.,  264)  it  was  held  that  former 
section  16,  giving  to  the  Commission  a  summary  proceeding  in  court  to  enforce 
its  order,  was  repealed  by  the  judiciary  act  of  March  3,  1891  (26  Stat.  L.,  826) 
in  so  far  as  it  allowed  an  appeal  direct  to  the  Supreme  Court  when  the  matter 
in  dispute  exceeded  $2,000,  and  that  the  appeal  should  be  taken  to  the  circuit 
court  of  appeals. 


266  APPEAL  AND  ERROR 

of  the  United  States  under  any  of  said  acts,  wherein  the  United  States  is  com- 
plainant, including  eases  submitted  but  not  yet  decided,  an  appeal  from  the 
final  decree  of  the  circuit  court  will  lie  only  to  the  Supreme  Court  and  must  be 
taken  within  sixty  days  from  the  entry  thereof:  Provided,  That  in  any  case 
where  an  appeal  may  have  been  taken  from  the  final  decree  of  a  circuit  court  to 
the  circuit  court  of  appeals  before  this  act  takes  effect,  the  case  shall  proceed  to 
a  final  decree  therein,  and  an  appeal  may  be  taken  from  such  decree  to  the  Su- 
preme Court  in  the  manner  now  provided  by  law. 

The  provisions  of  this  act  are,  by  section  16  of  the  act  to  regulate 
commerce,  made  applicable  to  suits  brought  against  the  Commission 
to  enjoin,  set  aside,  annul,  or  suspend  any  order  or  requirement  of 
the  Commission,  and  also  to  other  proceedings  in  equity  to  enforce  an 
order  or  requirement  of  the  Commission,  or  any  of  the  provisions  of 
the  act  to  regulate  commerce.  The  provisions  are  also  made  appli- 
cable to  cases  brought  by  the  Attorney-General  in  the  name  of  the 
Interstate  Commerce  Commission,  under  section  3  of  the  Elkins'  law, 
to  prevent  transportation  at  less  than  the  published  rates  on  file  or 
any  discrimination  forbidden  by  law. 

UNDER  THE  INTERSTATE  COMMERCE  ACT 

The  provisions  of  the  act  to  regulate  commerce  respecting  appeals 
are  to  be  found  in  section  16 : 

(a)  From  any  action  upon  such  petition  [in  a  circuit  court  for  the  enforcement 
of  an  order  of  the  Commission  other  than  for  the  payment  of  money]  an  appeal 
shall  lie  by  either  party  [i.  e.,  Interstate  Commerce  Commission  or  party  injured 
thereby,  or  defendant  carrier]  to  the  Supreme  Court  of  the  United  States,  and  in 
such  court  the  case  shall  have  priority  in  hearing  and  determination  over  all  other 
causes  except  criminal  causes,  but  such  appeal  shall  not  vacate  or  suspend  the 
order  appealed  from. 

(6)  An  appeal  may  be  taken  from  any  interlocutory  order  or  decree  granting 
or  continuing  an  injunction  in  any  suit  [i.  e.,  brought  to  enjoin,  set  aside,  or 
annul,  or  suspend  any  order  or  requirement  of  the  Commission],  but  shall  lie  only 
to  the  Supreme  Court  of  the  United  States. 

(c)  The  appeal  [from  an  interlocutory  order  or  injunction]  must  be  taken 
within  thirty  days  from  the  entry  of  such  order  or  decree  and  it  shall  take 
precedence  in  the  appellate  court  over  all  other  causes,  except  causes  of  a  like 
character  and  criminal  causes. 

UNDER   THE  ELKINS '   LAW 

In  suits  brought  by  the  Attorney-General  at  the  request  of  the  In- 
terstate Commerce  Commission,  to  prevent  transportation  at  less  than 
the  tariffs  on  file  and  discriminations  forbidden  by  law,  the  order, 
writ,  or  process  of  the  circuit  court  is  ' '  subject  to  the  right  of  appeal 
as  now  provided  by  law. ' ' 

The  appeals  provided  by  law  at  the  passage  of  the  act  of  February 
19,  1903,  were  the  general  statutes  on  that  subject  and  the  provisions 
of  the  then  section  16  of  the  act  to  regulate  commerce,  as  amended  by 


APPEAL  AND  ERROR  267 

act  of  March  2,  1889.  That  section  provided  for  cases  in  the  circuit 
courts : 

(a)  Not  founded  upon  a  controversy  requiring  a  trial  by  jury,  as  provided  by 
the  seventh  amendment  to  the  Constitution  of  the  United  States. 

(6)  Founded  upon  a  controversy  requiring  a  trial  by  jury,  as  provided  by  the 
seventh  amendment  to  the  Constitution. 

In  the  former  class  of  cases  it  was  provided  that — 

When  the  subject  in  dispute  shall  be  of  the  value  of  two  thousand  dollars  or 
more,  either  party  to  such  proceeding  before  said  [circuit]  court  may  appeal  to 
the  Supreme  Court  of  the  United  States,  under  the  same  regulations  now  provided 
by  law  in  respect  of  security  for  such  appeal;  but  such  appeal  shall  not  operate 
to  stay  or  supersede  the  order  of  the  court  or  the  execution  of  any  writ  or  process 
thereon. 

In  cases  founded  upon  a  controversy  requiring  a  trial  by  jury  it 
was  provided  that — 

If  the  subject  in  dispute  shall  be  of  the  value  of  two  thousand  dollars  or  more 
either  party  may  appeal  to  the  Supreme  Court  of  the  United  States  under  the 
same  regulations  now  provided  by  law  in  respect  to  security  for  such  appeal;  but 
such  appeal  must  be  taken  within  twenty  days  from  the  day  of  the  rendition  of 
the  judgment  of  said  circuit  ^3Hrtr— — — — «, 

The  Supreme  Court  will  not  disturb  findings  of  fact  concurred  in 
by  the  courts  below: 

INSTANCE.— In  C.  N.  O.  &  T.  P.  K.  Co.  v.  I.  C.  C.  (162  U.  8.,  184)  the  Supreme 
Court  declined  to  review  the  question  of  fact  as  to  whether  the  circumstances  and 
conditions  were  so  dissimilar  as  to  justify  the  rates  charged  in  a  particular  case, 
or  to  review  a  question  as  to  the  reasonableness  of  rates,  when  the  circuit  court 
and  the  circuit  court  of  appeals  had  concurred  in  finding  the  existing  rate  rea- 
sonable. 

But  if  the  circumstances  which  should  have  been  considered  have 
not  been,  the  cause  will  be  reversed  and  remanded : 

INSTANCE.— In  T.  &  P.  Co.  v.  I.  C.  C.  (162  U.  S.,  197)  it  was  held  that  a  car- 
rier is  entitled  to  have  considered  all  the  legitimate  circumstances  and  condi- 
tions which  should  properly  be  passed  upon  by  the  Commission,  and  if  the  courts 
are  of  opinion  that  the  Commission  has  erred  in  excluding  certain  circumstances 
(as  ocean  competition)  from  consideration  it  should  have  reversed  the  decree 
of  the  trial  court,  set  aside  the  Commission's  order,  and  remanded  the  cause  to 
the  Commission,  to  proceed  in  accordance  with  law. 

Sec.  203.  Appeals  to  the  circuit  courts  of  appeals. — Appeals  to  the 
circuit  court  of  appeals  are  provided  for  by  sections  6  and  7  of  the  act 
establishing  those  courts  (act  of  March  3,  1891)  : 

SEC.  6.  That  the  circuit  courts  of  appeals  established  by  this  act  shall  exercise 
appellate  jurisdiction  to  review  by  appeal  or  by  writ  of  error  final  decision  in  the 
district  court  and  the  existing  circuit  courts  in  all  cases  other  than  those  pro- 
vided for  in  the  preceding  section  of  this  act,  unless  otherwise  provided  by  law, 
and  the  judgments  or  decrees  of  the  circuit  courts  of  appeals  shall  be  final  in 
all  cases  in  which  the  jurisdiction  is  dependent  entirely  upon  the  opposite  parties 
to  the  suit  or  controversy,  being  aliens  and  citizens  of  the  United  States  or 
citizens  of  different  States;  also  in  all  cases  arising  under  the  patent  laws, 


268  APPEAL  AND  ERROR 

under  the  revenue  laws,  and  under  the  criminal  laws  and  in  admiralty  cases, 
excepting  that  in  every  such  subject  within  its  appellate  jurisdiction  the  cir- 
cuit court  of  appeals  at  any  time  may  certify  to  the  Supreme  Court  of  the 
United  States  any  questions  or  propositions  of  law  concerning  which  it  desires  the 
instruction  of  that  court  for  its  proper  decision. 

And  thereupon  the  Supreme  Court  may  either  give  its  instruction  on  the 
questions  and  propositions  certified  to  it,  which  shall  be  binding  upon  the  cir- 
cuit courts  of  appeals  in  such  case,  or  it  may  require  that  the  whole  record  and 
cause  may  be  sent  up  to  it  for  consideration,  and  thereupon  shall  decide  the  whole 
matter  in  controversy  in  the  same  manner  as  if  it  had  been  brought  there  for 
review  by  writ  of  error  or  appeal. 

And  excepting  also  that  in  any  such  case  as  is  hereinbefore  made  final  in  the 
circuit  court  of  appeals  it  shall  be  competent  for  the  Supreme  Court  to  require, 
by  certiorari  or  otherwise,  any  such  case  to  be  certified  to  the  Supreme  Court  for 
its  review  and  determination  with  the  same  power  and  authority  in  the  case  as 
if  it  had  been  carried  by  appeal  or  writ  of  error  to  the  Supreme  Court. 

In  all  cases  not  hereinbefore,  in  this  section,  made  final  there  shall  be  of  right 
an  appeal  or  writ  of  error  or  review  of  the  case  by  the  Supreme  Court  of  the 
United  States  where  the  matter  in  controversy  shall  exceed  one  thousand  dollars 
besides  costs. 

But  no  such  appeal  shall  be  taken  or  writ  of  error  sued  out  unless  within  one 
year  after  the  entry  of  the  order,  judgment,  or  decree  sought  to  be  reviewed. 

SEC.  7.  That  where,  upon  a  hearing  in  equity  in  a  district  court,  or  in  an 
existing  circuit  court,  an  injunction  shall  be  granted  or  continued  by  an  inter- 
locutory order  or  decree,  in  a  cause  in  which  an  appeal  from  a  final  decree  may 
be  taken  under  the  provisions  of  this  act  to  the  circuit  court  of  appeals,  an 
appeal  may  be  taken  from  such  interlocutory  order  or  decree  granting  or  con- 
tinuing such  injunction  to  the  circuit  court  of  appeals:  Provided,  That  the  ap- 
peal must  be  taken  within  thirty  days  from  the  entry  of  such  order  or  decree, 
and  it  shall  take  precedence  in  the  appellate  court;  and  the  proceedings  in  other 
respects  in  the  court  below  shall  not  be  stayed  unless  otherwise  ordered  by  that 
court  during  the  pendency  of  such  appeal. 

Sec.  204.  Costs  on  appeal. — The  usual  rules  respecting  costs  upon 
appeal  are  changed,  in  that  by  the  provisions  of  section  16,  where  a 
petitioner  has  instituted  a  suit  to  compel  obedience  to  an  order  of  the 
Commission  for  the  payment  of  money,  he  is  not  liable  for  costs,  either 
in  the  court  below  or  at  any  subsequent  stage  of  the  proceedings  un- 
less they  accrue  upon  his  appeal. 


APPENDIX 


THE   ACTS   TO   REGULATE   COMMERCE 


The  acts  to  regulate  commerce,  with  citations,  are  given  below;  for 
other  acts  tinder  which  the  Commission  has  jurisdiction  or  authority 
see  Chapter  IV,  pages  51-64. 

Act  to  regulate  commerce: 

An  act  to  regulate  commerce,  approved  February  4,  1887,  and  in  effect  April 
5,  1887  (24  Stat.  L.,  379;  1  Supp.  E.  S.,  529),  as  amended  by  an  act 
approved  March  2,  1889  (25  Stat.  L.,  855;  1  Supp.  E.  S.,  684),  and  by  an 
act  approved  February  10,  1891  (26  Stat.  L.,  743;  1  Supp.  E.  S.,  891), 
and  by  an  act  approved  February  8,  1895  (28  Stat.  L.,  643;  2  Supp.  E. 
S.,  369),  and  by  an  act  approved  June  29,  1906  (34  Stat.  L.,  584),  and  by 
a  joint  resolution  approved  June  30,  1906  (34  Stat.  L.,  838),  and  by  an 
act  approved  April  13,  1908  (35  Stat.  L.,  60). 

Acts  relating  to  testimony: 

An  act  in  relation  to  testimony  before  the  Interstate  Commerce  Commission, 
and  in  cases  or  proceedings  under  or  connected  with  an  act  entitled  an 
act  to  regulate  commerce,  and  amendments  thereto,  approved  February  11, 
1893  (27  Stat.  L.,  443;  2  Supp.  E.  S.,  80). 

An  act  defining  the  right  of  immunity  of  witnesses  under  the  act  entitled  an 
act  in  relation  to  testimony  before  the  Interstate  Commerce  Commission, 
and  so  forth,  approved  February  11,  1893,  and  an  act  entitled  an  act  to 
establish  the  Department  of  Commerce  and  Labor,  approved  February  14, 

1903,  and  an  act  entitled  an  act  to  further  regulate  commerce  with  foreign 
nations  and  among  the  States,  approved  February  19,  1903,  and  an  act  en- 
titled  an   act   making   appropriations   for   the   legislative,    executive,   and 
judicial  expenses  of  the  Government  for  the  fiscal  year  ending  June  30, 

1904,  and  for  other  purposes,  approved  February  25,  1903,  approved  June 
30,  1906  (34  Stat.  L.,  798). 

Elkins  act: 

An  act  to  further  regulate  commerce  with  foreign  nations  and  among  the 
States,  approved  February  19,  1903  (32  Stat.  L.,  847),  as  amended  by  an 
act  approved  June  29,  1906  (34  Stat.  L.,  584). 

Expedition  act: 

An  act  to  expedite  the  hearing  and  determination  of  suits  in  equity  pending 
or  hereafter  brought  under  the  act  of  July  2,  1890,  entitled  an  act  to  pro- 
tect trade  and  commerce  against  unlawful  restraints  and  monopoliest  an 
act  to  regulate  commerce,  or  any  other  acts  having  a  like  purpose  that 
may  be  hereafter  enacted,  approved  February  11,  1903  (32  Stat.  L.,  823). 


271 


DIGEST  OF  THE  ACT  TO  REGULATE  COMMERCE 

[As  amended.] 


SECTION  1: 

Carriers  and  transportation  subject  to  the  law. 

Law  does  not  apply  to  transportation  wholly  within  one  State. 

Express  and  sleeping  car  companies  included. 

Definition  of  "railroad"  and  "transportation". 

Free  passes  and  transportation  prohibited.   (Compare  section  22.) 

Excepted  classes  respecting  free  transportation. 

Interchange  of  passes  authorized. 

Meaning  of  "employees  and  families". 

Jurisdiction  and  penalty  for  violation  of  pass  provision. 

Railroad  companies  prohibited  from  transporting  commodities 
in  which  they  are  interested,  timber  and  its  products  excepted. 

Switch  connections  may  be  ordered  by  the  Commission. 
SECTION  2: 

Unjust  discrimination  defined  and  forbidden. 
SECTION  3: 

Undue  or  unreasonable  preference  or  advantage  unlawful. 

Facilities  for  interchange  of  traffic  must  be  furnished. 

Discrimination  between  connecting  lines  forbidden. 
SECTION  4: 

Long  and  short  haul  section. 

Commission  has  authority  to  relieve  carriers  from  the  operation 

of  this  section. 
SECTION  5 : 

Pooling  of  freights  and  division  of  earnings  forbidden. 
SECTION  6: 

Printing  and  posting  of  schedules  of  rates,  fares,  and  charges, 
including  rates  and  regulations  affecting  the  same,  icing,  stor- 
age, and  terminal  charges,  and  freight  classifications. 

Printing  and  posting  of  schedules  of  rates  on  freight  carried 
through  a  foreign  country. 

Freight  subject  to  customs  duties  in  case  of  failure  to  publish 
through  rates. 

Thirty  days'  public  notice  of  change  in  rates  must  be  given. 

Commission  may  modify  requirements  of  this  section. 

272 


ACT  TO  EEGULATE  COMMERCE  273 

SECTION  6 — Continued: 

Joint  tariffs  must  specify  names  of  carriers  participating. 

Evidence  of  concurrence. 

Copies  of  contracts,  agreements,  or  arrangements,  relating  to  traf- 
fic must  be  filed  with  Commission. 

Commission  may  prescribe  forms  of  schedules. 

Prohibited  to  engage  in  transportation  unless  carrier  files  and 
publishes  rates,  fares  and  charges  thereon. 

Published  rates  not  to  be  deviated  from. 

"Carrier"  means  "common  carrier." 

Preference  and  expedition  of  military  traffic  in  time  of  war. 
SECTION  7 : 

Continuous  carriage  provided  for. 

SECTION  8 : 

Liability  of  common  carriers  for  damages. 

SECTION  9: 

Persons  claiming  to  be  damaged  may  elect  to  complain  to  the 

Commission  or  bring  suit  in  a  United  States  court. 
Officers  or  defendant  may  be  compelled  to  testify. 

SECTION  10 : 

Penalties  for  violations  of  act  by  carriers,  or  when  the  carrier 
is  a  corporation,  its  officers,  agents,  or  employees;  fine  and  im- 
prisonment. 

Penalties  for  false  billing,  etc.,  by  carriers,  their  officers,  or 
agents ;  fine  and  imprisonment. 

Penalties  for  false  billing,  etc.,  by  shippers  and  other  persons; 
fine  and  imprisonment. 

Penalties  for  inducing  common  carriers  to  discriminate  unjustly ; 
fine  and  imprisonment,  joint  liability  with  carrier  for  dam- 
ages. 

SECTION  11: 

Interstate  Commerce  Commissioners,  how  appointed.  (Compare 
section  24.) 

SECTION  12 : 

Power  and  duty  of  Commission  to  inquire  into  business  of  car- 
riers and  keep  itself  informed  in  regard  thereto. 

Commission  required  to  execute  and  enforce  provisions  of  this 
act. 

Duty  of  district  attorney  to  prosecute  under  direction  of  Attor- 
ney-General. 

Costs  and  expenses  of  prosecution  to  be  paid  out  of  appropria- 
tions for  courts. 


274  ACT  TO  REGULATE  COMMERCE 

SECTION  12 — Continued : 

Power  of  Commission  to  require  attendance  and  testimony  of 
witnesses  and  production  of  documentary  evidence. 

Commission  may  invoke  aid  of  courts  to  compel  witnesses  to  at- 
tend and  testify. 

Penalty  for  disobedience  to  order  of  the  court. 

Claim  that  testimony  or  evidence  will  tend  to  criminate  will  not 
excuse  witness.  (Compare  act  of  February  11,  1893,  and  act  of 
February  25,  1903.) 

Testimony  may  be  taken  by  deposition. 

Commission  may  order  testimony  to  be  taken  by  deposition. 

Reasonable  notice  must  be  given. 

Testimony  by  deposition  may  be  compelled  in  the  same  manner 
as  above  specified. 

Manner  of  taking  deposition. 

When  witness  is  in  a  foreign  country. 

Depositions  must  be  filed  with  the  Commission. 

Fees  of  witnesses  and  magistrates.     (See  sec.  848,  R.  S.) 

SECTION  13: 

Who  may  complain;  how  served  upon  carriers. 

Reparation  by  carriers  before  investigation. 

Investigations  of  complaints  by  the  Commission. 

State  railroad  commissions  may  complain. 

Institution  of  inquiries  by  the  Commission  on  its  own  motion. 

Complainant  need  not  be  directly  damaged. 

SECTION  14: 

Commission  must  make  report  of  investigations,  stating  its  con- 
clusions and  order. 

Reparation. 

Reports  of  investigations  must  be  entered  on  record;  service  of 
copies  on  parties. 

Reports  and  decisions;  authorized  publication  competent  evi- 
dence. 

Publication  and  distribution  of  annual  reports  of  Commission. 

SECTION  15: 

Commission  may  determine  and  prescribe  just  and  reasonable 
rates  to  be  observed  as  maximum  charges. 

Commission  may  determine  and  prescribe  just  and  reasonable 
regulations  or  practices;  Commission  may  order  carriers  to 
cease  and  desist  from  full  extent  of  violations  found;  orders 
of  the  Commission  effective  as  prescribed  but  in  not  less  than 
thirty  days. 


ACT  TO  REGULATE  COMMERCE  275 

SECTION  15 — Continued: 

Orders  shall  continue  in  force  not  exceeding  two  years,  unless 
suspended  or  set  aside  by  Commission  or  court. 

"When  carriers  fail  to  agree  on  divisions  of  joint  rate  Commission 
may  prescribe  proportion  of  such  rate  to  be  received  by  each 
carrier. 

Commission  may  establish  through  routes  and  joint  rates. 

Commission  may  determine  just  and  reasonable  charge  or  allow- 
ance for  service  rendered  by  owner  of  property  transported  or 
for  any  instrumentality  furnished  by  such  owner  and  used  in 
such  transportation. 

Enumeration  of  powers  in  this  section  not  exclusive. 

SECTION  16: 

Award  of  damages  by  Commission. 

Petition  to  United  States  court  in  case  carrier  does  not  comply 

with  order  for  payment  of  money. 
Findings  of  fact  of  Commission  shall  be  prima  facie  evidence 

in  reparation  cases;  petitioner  not  liable  for  costs  in  circuit 

court. 

Petitioners'  attorneys  fees. 
Limitation  of  actions. 
Accrued  claims. 
Joint  plaintiffs  may  sue  joint  defendants  in  courts  on  awards  of 

damages. 

Service  of  process. 

Service  of  order  of  Commission  by  mailing. 
Commission  may  suspend  or  modify  order. 
Carriers,  their  agents  and  employees,  must  comply  with  such 

order. 

Punishment  by  forfeiture  for  refusal  to  obey  order  of  Commis- 
sion under  section  15. 

Forfeiture  payable  into  Treasury  and  recoverable  in  civil  suit. 
Duty  of  district  attorneys  to  prosecute. 
Costs  and  expenses  to  be  paid  out  of  appropriations  for  court 

expenses. 

Commission  may  employ  special  counsel. 
Petition  to  United  States  court  in  cases  of  disobedience  to  order 

of  Commission  other  than  for  payment  of  money;  jurisdiction 

of  court. 
Court  must  enforce  disobeyed  order  if  regularly  made  and  duly 

served. 

Appeal  to  Supreme  Court  of  the  United  States. 
Venue  of  suits  brought  against  Commission  to  enjoin,  set  aside, 

annul  or  suspend  order  of  Commission. 


276  ACT  TO  REGULATE  COMMERCE 

SECTION  16 — Continued : 

Provisions  of  expediting  act  to  apply. 

Appeal  to  Supreme  Court ;  priority  of  case  in  Supreme  Court. 

No  injunction  or  interlocutory  order  to  be  granted  except  after 

not  less  than  five  days'  notice. 
Appeal  to  Supreme  Court  from  interlocutory  order  or  decree  in 

thirty  days. 
Rate  schedules,  contracts  or  agreements,  and  carriers'  annual 

reports  filed  with  Commission  and  in  custody  of  secretary  are 

public  records  receivable  in  courts  and  by  the  Commission  as 

prima  facie  evidence. 
Certified  copies  or  evidence  therefrom  also  prima  facie  evidence. 

SECTION  16a: 

Commission  may  grant  rehearings. 

Application  for  rehearing  shall  not  operate  as  stay  of  proceed- 
ings unless  so  ordered  by  Commission. 

SECTION  17: 

Commission  may,  on  rehearing,  reverse,  change  or  modify  order. 
Interstate  Commerce  Commission ;  form  of  procedure. 
Parties  may  appear  before  the  Commission  in  person  or  by  at- 
torney. 
Official  seal. 

SECTION  18 : 

Salaries  of  Commissioners.     (Compare  section  24.) 

Secretary,  how  appointed ;  salary. 

Employees. 

Offices  and  supplies. 

Witnesses'  fees.    (See  section  848,  R.  S.) 

Expenses  of  the  Commission,  how  paid. 

SECTION  19: 

Principal  office  of  the  Commission. 
Sessions  of  the  Commission. 

Commission  may  prosecute  inquiries  by  one  or  more  of  its  mem- 
bers in  any  part  of  the  United  States. 

SECTION  20: 

Carriers  subject  to  act  and  owners  of  railroads  engaged  in  inter- 
state commerce  must  render  full  annual  reports  to  Commis- 
sion; and  Commission  is  authorized  to  prescribe  manner  in 
which  reports  shall  be  made  and  require  specific  answers  to  all 
questions. 

"What  reports  of  carriers  shall  contain. 

Commission  may  prescribe  uniform  system  of  accounts  and  man- 
ner of  keeping  accounts. 


ACT  TO  REGULATE  COMMERCE  277 

SECTION  20 — Continued: 

Annual  reports  to  be  filed  with  Commission  by  September  30  of 
each  year. 

Commission  may  grant  additional  time. 

Punishment  by  forfeiture  for  failure  to  file. 

Commission  may  require  filing  of  monthly  and  special  reports. 

Punishment  by  forfeiture  for  failure  to  file  special  reports. 

Oaths  to  annual  reports,  how  taken. 

Commission  may  prescribe  forms  of  accounts,  records  and  mem- 
oranda, and  have  access  thereto. 

Carrier  can  not  keep  other  accounts  than  those  prescribed  by 
Commission. 

Commission  may  employ  special  examiner  to  inspect  accounts  and 
records. 

Punishment  of  carrier  by  forfeiture  for  failure  to  keep  accounts 
or  records  as  prescribed  by  Commission  or  allow  inspection  of 
accounts  or  records. 

Punishment  of  person  for  false  entry  in  accounts  or  records,  or 
mutilation  of  accounts  or  records,  or  for  keeping  other  ac- 
counts than  those  prescribed  by  Commission;  fine  or  im- 
prisonment or  both. 

Punishment  of  special  examiner  who  divulges  facts  or  informa- 
tion without  authority ;  fine  or  imprisonment,  or  both. 

United  States  court  may  issue  mandamus  or  compel  compliance 
with  provisions  of  act. 

Commission  may  employ  special  agents  or  examiners  to  administer 
oaths,  examine  witnesses  and  receive  evidence. 

Receiving  common  carrier  liable  for  loss  or  damage  on  through 
shipments  carried  by  it  or  by  any  connection,  irrespective  of 
contract  to  contrary. 

Remedies  under  existing  law  not  barred. 

Initial  carrier  may  have  recourse  upon  carrier  responsible  for 

loss  or  damage. 
SECTION  21: 

Annual  reports  of  the  Commission  to  Congress. 
SECTION  22: 

Persons  and  property  that  may  be  carried  free  or  at  reduced 
rates.  (Compare  section  1.) 

Mileage,  excursion,  or  commutation  passenger  tickets. 

Passes  and  free*  transportation  to  officers  and  employees  of  rail- 
road companies. 

Provisions  of  act  are  in  addition  to  remedies  existing  at  common 
law;  pending  litigation  not  affected  by  act. 


278  ACT  TO  REGULATE  COMMERCE 

SECTION  22 — Continued : 

Joint  interchangeable  5,000-mile  tickets;  amount  of  free  bag- 
gage. 

Publication  of  rates. 

Sale  of  tickets. 

Penalties. 
SECTION  23: 

Jurisdiction  of  United  States  courts  to  issue  writs  of  mandamus 
commanding  the  movement  of  interstate  traffic  or  the  furnish- 
ing of  cars  or  other  transportation  facilities. 

Peremptory  mandamus  may  issue  notwithstanding  proper  com- 
pensation of  carrier  may  be  undetermined. 

Remedy  cumulative  and  shall  not  interfere  with  other  remedies 

provided  by  the  act. 
SECTION  24: 

Commission  to  consist  of  7  members ;  terms ;  salaries.  ( Compare 
section  11.) 

Qualifications  and  enlargement  of  Commission. 

ADDITIONAL  PROVISIONS  OP  ACT,  JUNE  29,  1906 

SECTION  9 : 

Existing  laws  as  to  attendance  of  witnesses  and  production  of 

evidence  applicable  in  proceedings  under  this  act. 
SECTION  10: 

Conflicting  laws  repealed. 

Amendments  not  to  affect  causes  pending  in  court. 
SECTION  11 : 

Act  effective  after  passage. 

JOINT  RESOLUTION 

Time  of  taking  effect  extended  to  August  28,  1906. 


THE  ACT  TO  REGULATE  COMMERCE 


Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  SEC.  1.  (As  amended 
June  29,  1906.)  That  the  provisions  of  this  Act  shall  apply  to  any 
corporation  or  any  person  or  persons  engaged  in  the  transportation  of 
oil  or  other  commodity,  except  water  and  except  natural  or  artificial 
gas,  by  means  of  pipe  lines,  or  partly  by  pipe  lines  and  partly  by  rail- 
road, or  partly  by  pipe  lines  and  partly  by  water,  who  shall  be  con- 
sidered and  held  to  be  common  carriers  within  the  meaning  and  pur- 
pose of  this  Act,  and  to  any  common  carrier  or  carriers  engaged  in 
the  transportation  of  passengers  or  property  wholly  by  railroad  (or 
partly  by  railroad  and  partly  by  water  when  both  are  used  under  a 
common  control,  management,  or  arrangement  for  a  continuous  car- 
riage or  shipment),  from  one  State  or  Territory  of  the  United  States, 
or  the  District  of  Columbia,  to  any  other  State  or  Territory  of  the 
United  States,  or  the  District  of  Columbia,  or  from  one  place  in  a 
Territory  to  another  place  in  the  same  Territory,  or  from  any  place 
in  the  United  States  to  an  adjacent  foreign  country,  or  from  any 
place  in  the  United  States  through  a  foreign  country  to  any  other 
place  in  the  United  States,  and  also  to  the  transportation  in  like  man- 
ner of  property  shipped  from  any  place  in  the  United  States  to  a 
foreign  country  and  carried  from  such  place  to  a  port  of  transship- 
ment, or  shipped  from  a  foreign  country  to  any  place  in  the  United 
States  and  carried  to  such  place  from  a  port  of  entry  either  in  the 
United  States  or  an  adjacent  foreign  country:  Provided,  however, 
That  the  provisions  of  this  Act  shall  not  apply  to  the  transportation 
of  passengers  or  property,  or  to  the  receiving,  delivering,  storage,  or 
handling  of  property  wholly  within  one  State  and  not  shipped  to  or 
from  a  foreign  country  from  or  to  any  State  or  Territory  as  afore- 
said. 

The  term  "common  carrier"  as  used  in  this  Act  shall  include  ex- 
press companies  and  sleeping  car  companies.  The  term  "railroad," 
as  used  in  this  Act,  shall  include  all  bridges  and  ferries  used  or  oper- 
ated in  connection  with  any  railroad,  and  also  all  the  road  in  use  by 
any  corporation  operating  a  railroad,  whether  owned  or  operated 
under  a  contract,  agreement,  or  lease,  and  shall  also  include  all 
switches,  spurs,  tracks,  and  terminal  facilities  of  every  kind  used  or 
necessary  in  the  transportation  of  the  persons  or  property  designated 
herein,  and  also  all  freight  depots,  yards,  and  grounds  used  or  neces- 
sary in  the  transportation  or  delivery  of  any  of  said  property;  and 
the  term  "transportation"  shall  include  cars  and  other  vehicles  and 
all  instrumentalities  and  facilities  of  shipment  or  carriage,  irrespec- 
tive of  ownership  or  of  any  contract,  express  or  implied,  for  the  use 
thereof  and  all  services  in  connection  with  the  receipt,  delivery,  ele- 
vation, and  transfer  in  transit,  ventilation,  refrigeration  or  icing, 
storage,  and  handling  of  property  transported;  and  it  shall  be  the 

279 


280  ACT  TO  REGULATE  COMMERCE 

duty  of  every  carrier  subject  to  the  provisions  of  this  Act  to  provide 
and  furnish  such  transportation  upon  reasonable  request  therefor,  and 
to  establish  through  routes  and  just  and  reasonable  rates  applicable 
thereto. 

All  charges  made  for  any  service  rendered  or  to  be  rendered  in  the 
transportation  of  passengers  or  property  as  aforesaid,  or  in  connection 
therewith,  shall  be  just  and  reasonable ;  and  every  unjust  and  unrea- 
sonable charge  for  such  service  or  any  part  thereof  is  prohibited  and 
declared  to  be  unlawful. 

No  common  carrier  subject  to  the  provisions  of  this  Act  shall, 
after  January  first,  nineteen  hundred  and  seven,  directly  or  indirectly, 
issue  or  give  any  interstate  free  ticket,  free  pass,  or  free  transporta- 
tion for  passengers,  except  to  its  employees  and  their  families,  its  of- 
ficers, agents,  surgeons,  physicians,  and  attorneys  at  law;  to  ministers 
of  religion,  traveling  secretaries  of  railroad  Young  Men's  Christian 
Associations,  inmates  of  hospitals  and  charitable  and  eleemosynary 
institutions,  and  persons  exclusively  engaged  in  charitable  and  el- 
eemosynary work;  to  indigent,  destitute  and  homeless  persons,  and 
to  such  persons  when  transported  by  charitable  societies  or  hospitals, 
and  the  necessary  agents  employed  in  such  transportation ;  to  inmates 
of  the  National  Homes  or  State  Homes  for  Disabled  Volunteer  Sol- 
diers, and  of  Soldiers'  and  Sailors'  Homes,  including  those  about  to 
enter  and  those  returning  home  after  discharge  and  boards  of  man- 
agers of  such  Homes;  to  necessary  care  takers  of  live  stock,  poultry, 
and  fruit ;  to  employees  on  sleeping  cars,  express  cars,  and  to  linemen 
of  telegraph  and  telephone  companies;  to  Railway  Mail  Service  em- 
ployees, post-office  inspectors,  customs  inspectors  and  immigration  in- 
spectors; to  newsboys  on  trains,  baggage  agents,  witnesses  attending 
any  legal  investigation  in  which  the  common  carrier  is  interested,  per- 
sons injured  in  wrecks  and  physicians  and  nurses  attending  such  per- 
sons: Provided,  That  this  provision  shall  not  be  construed  to  pro- 
hibit the  interchange  of  passes  for  the  officers,  agents,  and  employees 
of  common  carriers,  and  their  families;  nor  to  prohibit  any  common 
carrier  from  carrying  passengers  free  with  the  object  of  providing 
relief  in  cases  of  general  epidemic,  pestilence,  or  other  calamitous  visi- 
tation: Provided  further,  That  the  term  "employees"  as  used  in 
this  paragraph  shall  include  furloughed,  pensioned,  and  superannu- 
ated employees,  persons  who  have  become  disabled  or  infirm  in  the 
service  of  any  such  common  carrier,  and  the  remains  of  a  person 
killed  in  the  employment  of  a  carrier  and  ex-employees  traveling  for 
the  purpose  of  entering  the  service  of  any  such  common  carrier;  and 
the  term  "families"  as  used  in  this  paragraph  shall  include  the  fam- 
ilies of  those  persons  named  in  this  proviso,  also  the  families  of  per- 
sons killed  while  in  the  service  of  any  such  common  carrier.*  Any  com- 
mon carrier  violating  this  provision  shall  be  deemed  guilty  of  a  mis- 
demeanor and  for  each  offense,  on  conviction,  shall  pay  to  the  United 
States  a  penalty  of  not  less  than  one  hundred  dollars  nor  more  than 
two  thousand  dollars,  and  any  person,  other  than  the  persons  ex- 
cepted  in  this  provision,  who  uses  any  such  interstate  free  ticket,  free 
pass,  or  free  transportation,  shall  be  subject  to  a  like  penalty.  Juris- 
diction of  offenses  under  this  provision  shall  be  the  same  as  that  pro- 

*This  proviso  is  act  of  April  13,  1908  (35  Stat.  L.,  60). 


ACT  TO  REGULATE  COMMERCE  281 

vided  for  offenses  in  an  Act  entitled  ' '  An  Act  to  further  regulate  com- 
merce with  foreign  nations  and  among  the  States,"  approved  Febru- 
ary nineteenth,  nineteen  hundred  and  three,  and  any  amendment 
thereof.  (See  section  22.) 

From  and  after  May  first,  nineteen  hundred  and  eight,  it  shall  be 
unlawful  for  any  railroad  company  to  transport  from  any  State, 
Territory,  or  the  District  of  Columbia,  to  any  other  State,  Territory, 
or  the  District  of  Columbia,  or  to  any  foreign  country,  any  article  or 
commodity,  other  than  timber  and  the  manufactured  products  thereof, 
manufactured,  mined,  or  produced  by  it,  or  under  its  authority,  or 
which  it  may  own  in  whole,  or  in  part,  or  in  which  it  may  have  any 
interest  direct  or  indirect  except  such  articles  or  commodities  as  may 
be  necessary  and  intended  for  its  use  in  the  conduct  of  its  business  as 
a  common  carrier. 

Any  common  carrier  subject  to  the  provisions  of  this  Act,  upon  ap- 
plication of  any  lateral,  branch  line  of  railroad,  or  of  any  shipper  ten- 
dering interstate  traffic  for  transportation,  shall  construct,  maintain, 
and  operate  upon  reasonable  terms  a  switch  connection  with  any  such 
lateral,  branch  line  of  railroad,  or  private  side  track  which  may  be 
constructed  to  connect  with  its  railroad,  where  such  connection  is  rea- 
sonably practicable  and  can  be  put  in  with  safety  and  will  furnish 
sufficient  business  to  justify  the  construction  and  maintenance  of  the 
same;  and  shall  furnish  cars  for  the  movement  of  such  traffic  to  the 
best  of  its  ability  without  discrimination  in  favor  of  or  against  any 
such  shipper.  If  any  common  carrier  shall  fail  to  install  and  operate 
any  such  switch  or  connection  as  aforesaid,  on  application  therefor  in 
writing  by  any  shipper,  such  shipper  may  make  complaint  to  the 
Commission,  as  provided  in  section  thirteen  of  this  Act,  and  the  Com- 
mission shall  hear  and  investigate  the  same  and  shall  determine  as  to 
the  safety  and  practicability  thereof  and  justification  and  reasonable 
compensation  therefor  and  the  Commission  may  make  an  order,  as 
provided  in  section  fifteen  of  this  Act,  directing  the  common  carrier 
to  comply  with  the  provisions  of  this  section  in  accordance  with  such 
order,  and  such  order  shall  be  enforced  as  hereinafter  provided  for 
the  enforcement  of  all  other  orders  by  the  Commission,  other  than 
orders  for  the  payment  of  money. 

SEC.  2.  That  if  any  common  carrier  subject  to  the  provisions  of 
this  Act  shall,  directly  or  indirectly,  by  any  special  rate,  rebate,  draw- 
back, or  other  device,  charge,  demand,  collect,  or  receive  from  any 
person  or  persons  a  greater  or  less  compensation  for  any  service  ren- 
dered, or  to  be  rendered,  in  the  transportation  of  passengers  or  prop- 
erty, subject  to  the  provisions  of  this  Act,  than  it  charges,  demands, 
collects,  or  receives  from  any  other  person  or  persons  for  doing  for  him 
or  them  a  like  and  contemporaneous  service  in  the  transportation  of 
a  like  kind  of  traffic  under  substantially  similar  circumstances  and 
conditions,  such  common  carrier  shall  be  deemed  guilty  of  unjust  dis- 
crimination, which  is  hereby  prohibited  and  declared  to  be  unlawful. 

SEC.  3.  That  it  shall  be  unlawful  for  any  common  carrier  subject 
to  the  provisions  of  this  Act  to  make  or  give  any  undue  or  unreason- 
able preference  or  advantage  to  any  particular  person,  company,  firm, 
corporation,  or  locality,  or  any  particular  description  of  traffic,  in  any 
respect  whatsoever,  or  to  subject  any  particular  person,  company, 
firm,  corporation,  or  locality,  or  any  particular  description  of  traf- 


282  ACT  TO  REGULATE  COMMERCE 

fic,  to  any  undue  or  unreasonable  prejudice  or  disadvantage  in  any 
respect  whatsoever. 

Every  common  carrier  subject  to  the  provisions  of  this  Act  shall, 
according  to  their  respective  powers,  afford  all  reasonable,  proper,  and 
equal  facilities  for  the  interchange  of  traffic  between  their  respective 
lines,  and  for  the  receiving,  forwarding,  and  delivering  of  passengers 
and  property  to  and  from  their  several  lines  and  those  connecting 
therewith,  and  shall  not  discriminate  in  their  rates  and  charges  be- 
tween such  connecting  lines ;  but  this  shall  not  be  construed  as  requir- 
ing any  such  common  carrier  to  give  the  use  of  its  tracks  or  terminal 
facilities  to  another  carrier  engaged  in  like  business. 

SEC.  4.  That  it  shall  be  unlawful  for  any  common  carrier  subject 
to  the  provisions  of  this  Act  to  charge  or  receive  any  greater  com- 
pensation in  the  aggregate  for  the  transportation  of  passengers  or  of 
like  kind  of  property,  under  substantially  similar  circumstances  and 
conditions,  for  a  shorter  than  for  a  longer  distance  over  the  same  line, 
in  the  same  direction,  the  shorter  being  included  within  the  longer 
distance ;  but  this  shall  not  be  construed  as  authorizing  any  common 
carrier  within  the  terms  of  this  Act  to  charge  and  receive  as  great 
compensation  for  a  shorter  as  for  a  longer  distance :  Provided,  how- 
ever, That  upon  application  to  the  Commission  appointed  under  the 
provisions  of  this  Act,  such  common  carrier  may,  in  special  cases. 
after  investigation  by  the  Commission,  be  authorized  to  charge  less 
for  longer  than  for  shorter  distances  for  the  transportation  of  passen- 
gers or  property;  and  the  Commission  may  from  time  to  time  pre- 
scribe the  extent  to  which  such  designated  common  carrier  may  be 
relieved  from  the  operation  of  this  section  of  this  Act. 

SEC.  5.  That  it  shall  be  unlawful  for  any  common  carrier  subject 
to  the  provisions  of  this  Act  to  enter  into  any  contract,  agreement,  or 
combination  with  any  other  common  carrier  or  carriers  for  the  pool- 
ing of  freights  of  different  and  competing  railroads,  or  to  divide  be- 
tween them  the  aggregate  or  net  proceeds  of  the  earnings  of  such 
railroads,  or  any  portion  thereof ;  and  in  any  case  of  an  agreement  for 
the  pooling  of  freights  as  aforesaid,  each  day  of  its  continuance  shall 
be  deemed  a  separate  offense. 

SEC.  6.  (Amended  March  2,  1889.  Following  section  substituted 
June  29,  1906.)  That  every  common  carrier  subject  to  the  provisions 
of  this  Act  shall  file  with  the  Commission  created  by  this  Act  and 
print  and  keep  open  to  public  inspection  schedules  showing  all  the 
rates,  fares,  and  charges  for  transportation  between  different  points 
on  its  own  route  and  between  points  on  its  own  route  and  points  on  the 
route  of  any  other  carrier  by  railroad,  by  pipe  line,  or  by  water  when 
a  through  route  and  joint  rate  have  been  established.  If  no  joint  rate 
over  the  through  route  has  been  established,  the  several  carriers  in 
such  through  route  shall  file,  print,  and  keep  open  to  public  inspec- 
tion, as  aforesaid,  the  separately  established  rates,  fares  and  charges 
applied  to  the  through  transportation.  The  schedules  printed  as 
aforesaid  by  any  such  common  carrier  shall  plainly  state  the  places 
between  which  property  and  passengers  will  be  carried,  and  shall  con- 
tain the  classification  of  freight  in  force,  and  shall  also  state  separately 
all  terminal  charges,  storage  charges,  icing  charges,  and  all  other 
charges  which  the  Commission  may  require,  all  privileges  or  facilities 
granted  or  allowed  and  any  rules  or  regulations  which  in  any  wise 


ACT  TO  REGULATE  COMMERCE  283 

change,  affect,  or  determine  any  part  or  the  aggregate  of  such  afore- 
said rates,  fares,  and  charges,  or  the  value  of  the  service  rendered  to 
the  passenger,  shipper,  or  consignee.  Such  schedules  shall  be  plainly 
printed  in  large  type,  and  copies  for  the  use  of  the  public  shall  be  kept 
posted  in  two  public  and  conspicuous  places  in  every  depot,  station, 
or  office  of  such  carrier  where  passengers  or  freight,  respectively,  are 
received  for  transportation,  in  such  form  that  they  shall  be  accessible 
to  the  public  and  can  be  conveniently  inspected.  The  provisions  of 
this  section  shall  apply  to  all  traffic,  transportation,  and  facilities  de- 
fined in  this  Act. 

Any  common  carrier  subject  to  the  provisions  of  this  Act  receiving 
freight  in  the  United  States  to  be  carried  through  a  foreign  country 
to  any  place  in  the  United  States  shall  also  in  like  manner  print 
and  keep  open  to  public  inspection,  at  every  depot  or  office  where 
such  freight  is  received  for  shipment,  schedules  showing  the  through 
rates  established  and  charged  by  such  common  carrier  to  all  points  in 
the  United  States  beyond  the  foreign  country  to  which  it  accepts 
freight  for  shipment ;  and  any  freight  shipped  from  the  United  States 
through  a  foreign  country  into  the  United  States  the  through  rate  on 
which  shall  not  have  been  made  public,  as  required  by  this  Act,  shall, 
before  it  is  admitted  into  the  United  States  from  said  foreign  coun- 
try, be  subject  to  customs  duties  as  if  said  freight  were  of  foreign  pro- 
duction. 

No  change  shall  be  made  in  the  rates,  fares,  and  charges  or  joint 
rates,  fares,  and  charges  which  have  been  filed  and  published  by  any 
common  carrier  in  compliance  with  the  requirements  of  this  section, 
except  after  thirty  days'  notice  to  the  Commission  and  to  the  public 
published  as  aforesaid,  which  shall  plainly  state  the  changes  proposed 
to  be  made  in  the  schedule  then  in  force  and  the  time  when  the  changed 
rates,  fares,  or  charges  will  go  into  effect;  and  the  proposed  changes 
shall  be  shown  by  printing  new  schedules,  or  shall  be  plainly  indicated 
upon  the  schedules  in  force  at  the  time  and  kept  open  to  public  in- 
spection :  Provided,  That  the  Commission  may,  in  its  discretion  and 
for  good  cause  shown,  allow  changes  upon  less  than  the  notice  herein 
specified,  or  modify  the  requirements  of  this  section  in  respect  to 
publishing,  posting,  and  filing  of  tariffs,  either  in  particular  instances 
or  by  a  general  order  applicable  to  special  or  peculiar  circumstances 
or  conditions. 

The  names  of  the  several  carriers  which  are  parties  to  any  joint 
tariff  shall  be  specified  therein,  and  each  of  the  parties  thereto,  other 
than  the  one  filing  the  same,  shall  file  with  the  Commission  such  evi- 
dence of  concurrence  therein  or  acceptance  thereof  as  may  be  re- 
quired or  approved  by  the  Commission,  and  where  such  evidence  of 
concurrence  or  acceptance  is  filed  it  shall  not  be  necessary  for  the  car- 
riers filing  the  same  to  also  file  copies  of  the  tariffs  in  which  they  are 
named  as  parties. 

Every  common  carrier  subject  to  this  Act  shall  also  file  with  said 
Commission  copies  of  all  contracts,  agreements,  or  arrangements  with 
other  common  carriers  in  relation  to  any  traffic  affected  by  the  pro- 
visions of  this  Act  to  which  it  may  be  a  party. 

The  Commission  may  determine  and  prescribe  the  form  in  which 
the  schedules  required  by  this  section  to  be  kept  open  to  public  inspec- 


284  ACT  TO  REGULATE  COMMERCE 

tion  shall  be  prepared  and  arranged  and  may  change  the  form  from 
time  to  time  as  shall  be  found  expedient. 

No  carrier,  unless  otherwise  provided  by  this  Act,  shall  engage  or 
participate  in  the  transportation  of  passengers  or  property,  as  defined 
in  this  Act,  unless  the  rates,  fares,  and  charges  upon  which  the  same 
are  transported  by  said  carrier  have  been  filed  and  published  in  ac- 
cordance with  the  provisions  of  this  Act ;  nor  shall  any  carrier  charge 
or  demand  or  collect  or  receive  a  greater  or  less  or  different  compensa- 
tion for  such  transportation  of  passengers  or  property,  or  for  any  ser- 
vice in  connection  therewith,  between  the  points  named  in  such  tariffs 
than  the  rates,  fares,  and  charges  which  are  specified  in  the  tariff 
filed  and  in  effect  at  the  time;  nor  shall  any  carrier  refund  or  remit 
in  any  manner  or  by  any  device  any  portion  of  the  rates,  fares,  and 
charges  so  specified,  nor  extend  to  any  shipper  or  person  any  privi- 
leges or  facilities  in  the  transportation  of  passengers  or  property,  ex- 
cept such  as  are  specified  in  such  tariffs:  Provided,  That  wherever 
the  word  ' '  carrier ' '  occurs  in  this  Act  it  shall  be  held  to  mean  ' '  com- 
mon carrier." 

That  in  time  of  war  or  threatened  war  preference  and  precedence 
shall,  upon  the  demand  of  the  President  of  the  United  States,  be  given, 
over  all  other  traffic,  to  the  transportation  of  troops  and  material  of 
war,  and  carriers  shall  adopt  every  means  within  their  control  to 
facilitate  and  expedite  the  military  traffic. 

SEC.  7.  That  it  shall  be  unlawful  for  any  common  carrier  subject 
to  the  provisions  of  this  Act  to  enter  into  any  combination,  contract, 
or  agreement,  expressed  or  implied,  to  prevent,  by  change  of  time 
schedule,  carriage  in  different  cars,  or  by  other  means  or  devices,  the 
carriage  of  freights  from  being  continuous  from  the  place  of  shipment 
to  the  place  of  destination ;  and  no  break  of  bulk,  stoppage,  or  inter- 
ruption made  by  such  common  carrier  shall  prevent  the  carriage  of 
freights  from  being  and  being  treated  as  one  continuous  carriage  from 
the  place  of  shipment  to  the  place  of  destination,  unless  such  break, 
stoppage,  or  interruption  was  made  in  good  faith  for  some  necessary 
purpose,  and  without  any  intent  to  avoid  or  unnecessarily  interrupt 
such  continuous  carriage  or  to  evade  any  of  the  provisions  of  this 
Act. 

SEC.  8.  That  in  case  any  common  carrier  subject  to  the  provisions 
of  this  Act  shall  do,  cause  to  be  done,  or  permit  to  be  done  any  act, 
matter,  or  thing  in  this  Act  prohibited  or  declared  to  be  unlawful, 
or  shall  omit  to  do  any  Act,  matter,  or  thing  in  this  Act  required  to  be 
done,  such  common  carrier  shall  be  liable  to  the  person  or  persons 
injured  thereby  for  the  full  amount  of  damages  sustained  in  conse- 
quence of  any  such  violation  of  the  provisions  of  this  Act,  together 
with  a  reasonable  counsel  or  attorney 's  fee,  to  be  fixed  by  the  court  in 
every  case  of  recovery,  which  attorney's  fee  shall  be  taxed  and  col- 
lected as  part  of  the  costs  in  the  case. 

SEC.  9.  That  any  person  or  persons  claiming  to  be  damaged  by  any 
common  carrier  subject  to  the  provisions  of  this  Act  may  either  make 
complaint  to  the  Commission  as  hereinafter  provided  for,  or  may  bring 
suit  in  his  or  their  own  behalf  for  the  recovery  of  the  damages  for 
which  such  common  carrier  may  be  liable  under  the  provisions  of  this 
Act,  in  any  district  or  circuit  court  of  the  United  States  of  competent 
jurisdiction ;  but  such  person  or  persons  shall  not  have  the  right  to 


ACT  TO  REGULATE  COMMERCE  285 

pursue  both  of  said  remedies,  and  must  in  each  case  elect  which  one 
of  the  two  methods  of  procedure  herein  provided  for  he  or  they  will 
adopt.  In  any  such  action  brought  for  the  recovery  of  damages  the 
court  before  which  the  same  shall  be  pending  may  compel  any  di- 
rector, officer,  receiver,  trustee,  or  agent  of  the  corporation  or  company 
defendant  in  such  suit  to  attend,  appear,  and  testify  in  such  case, 
and  may  compel  the  production  of  the  books  and  papers  of  such  cor- 
poration or  company  party  to  any  such  suit ;  the  claim  that  any  such 
testimony  or  evidence  may  tend  to  criminate  the  person  giving  such 
evidence  shall  not  excuse  such  witness  from  testifying,  but  such  evi- 
dence or  testimony  shall  not  be  used  against  such  person  on  the  trial 
of  any  criminal  proceeding. 

SEC.  10.  (As  amended  March  2,  1889.)  That  any  common  carrier 
subject  to  the  provisions  of  this  Act,  or,  whenever  such  common  car- 
rier is  a  corporation,  any  director  or  officer  thereof,  or  any  receiver, 
trustee,  lessee,  agent,  or  person,  acting  for  or  employed  by  such  cor- 
poration, who,  alone  or  with  any  other  corporation,  company,  person, 
or  party,  shall  willfully  do  or  cause  to  be  done,  or  shall  willingly  suf- 
fer or  permit  to  be  done,  any  act,  matter,  or  thing  in  this  Act  pro- 
hibited or  declared  to  be  unlawful,  or  who  shall  aid  or  abet  therein, 
or  shall  willfully  omit  or  fail  to  do  any  act,  matter,  or  thing  in  this 
Act  required  to  be  done,  or  shall  cause  or  willingly  suffer  or  permit 
any  act,  matter,  or  thing  so  directed  or  required  by  this  Act  to  be  done 
not  to  be  so  done,  or  shall  aid  or  abet  any  such  omission  or  failure,  or 
shall  be  guilty  of  any  infraction  of  this  Act,  or  shall  aid  or  abet  there- 
in, shall  be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  convic- 
tion thereof  in  any  district  court  of  the  United  States  within  the  jur- 
isdiction of  which  such  offense  was  committed,  be  subject  to  a  fine  of 
not  to  exceed  five  thousand  dollars  for  each  offense :  Provided,  That 
if  the  offense  for  which  any  person  shall  be  convicted  as  aforesaid 
shall  be  an  unlawful  discrimination  in  rates,  fares,  or  charges,  for 
the  transportation  of  passengers  or  property,  such  person  shall,  in 
addition  to  the  fine  hereinbefore  provided  for,  be  liable  to  imprison- 
ment in  the  penitentiary  for  a  term  of  not  exceeding  two  years,  or 
both  such  fine  and  imprisonment,  in  the  discretion  of  the  court. 

Any  common  carrier  subject  to  the  provisions  of  this  Act,  or,  when- 
ever such  common  carrier  is  a  corporation,  any  officer  or  agent  thereof, 
or  any  person  acting  for  or  employed  by  such  corporation,  who,  by 
means  of  false  billing,  false  classification,  false  weighing,  or  false  re- 
port of  weight,  or  by  any  other  device  or  means,  shall  knowingly  and 
willfully  assist,  or  shall  willingly  suffer  or  permit,  any  person  or  per- 
sons to  obtain  transportation  for  property  at  less  than  the  regular 
rates  then  established  and  in  force  on  the  line  of  transportation  of 
such  common  carrier,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall,  upon  conviction  thereof  in  any  court  of  the  United  States  of 
competent  jurisdiction  within  the  district  in  which  such  offense  was 
committed,  be  subject  to  a  fine  of  not  exceeding  five  thousand  dollars, 
or  imprisonment  in  the  penitentiary  for  a  term  of  not  exceeding  two 
years,  or  both,  in  the  discretion  of  the  court,  for  each  offense. 

Any  person  and  any  officer  or  agent  of  any  corporation  or  com- 
pany who  shall  deliver  property  for  transportation  to  any  common 
carrier,  subject  to  the  provisions  of  this  Act,  or  for  whom  as  consignor 
or  consignee  any  such  carrier  shall  transport  property,  who  shall 


286  ACT  TO  REGULATE  COMMERCE 

knowingly  and  willfully,  by  false  billing,  false  classification,  false 
weighing,  false  representation  of  the  contents  of  the  package,  or  false 
report  of  weight,  or  by  any  other  device  or  means,  whether  with  or 
without  the  consent  or  connivance  of  the  carrier,  its  agent  or  agents, 
obtain  transportation  for  such  property  at  less  than  the  regular  rates 
then  established  and  in  force  on  the  line  of  transportation,  shall  be 
deemed  guilty  of  fraud,  which  is  hereby  declared  to  be  a  misdemeanor, 
and  shall,  upon  conviction  thereof  in  any  court  of  the  United  States 
of  competent  jurisdiction  within  the  district  in  which  such  offense 
was  committed,  be  subject  for  each  offense  to  a  fine  of  not  exceeding 
five  thousand  dollars  or  imprisonment  in  the  penitentiary  for  a  term 
of  not  exceeding  two  years,  or  both,  in  the  discretion  of  the  court. 

If  any  such  person,  or  any  officer  or  agent  of  any  such  corporation 
or  company,  shall,  by  payment  of  money  or  other  thing  of  value, 
solicitation,  or  otherwise,  induce  any  common  carrier  subject  to  the 
provisions  of  this  Act,  or  any  of  its  officers  or  agents,  to  discriminate 
unjustly  in  his,  its,  or  their  favor  as  against  any  other  consignor  or 
consignee  in  the  transportation  of  property,  or  shall  aid  or  abet  any 
common  carrier  in  any  such  unjust  discrimination,  such  person  or 
such  officer  or  agent  of  such  corporation  or  company  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall,  upon  conviction  thereof  in  any 
court  of  the  United  States  of  competent  jurisdiction  within  the  district 
in  which  such  offense  was  committed,  be  subject  to  a  fine  of  not  exceed- 
ing five  thousand  dollars,  or  imprisonment  in  the  penitentiary  for  a 
term  of  not  exceeding  two  years,  or  both,  in  the  discretion  of  the 
court,  for  each  offense;  and  such  person,  corporation,  or  company  shall 
also,  together  with  said  common  carrier,  be  liable,  jointly  or  severally, 
in  an  action  on  the  case  to  be  brought  by  any  consignor  or  consignee 
discriminated  against  in  any  court  of  the  United  States  of  competent 
jurisdiction  for  all  damages  caused  by  or  resulting  therefrom. 

SEC.  11.  That  a  Commission  is  hereby  created  and  established  to  be 
known  as  the  Interstate  Commerce  Commission,  which  shall  be  com- 
posed of  five  Commissioners,  who  shall  be  appointed  by  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate.  The  Commis- 
sioners first  appointed  under  this  Act  shall  continue  in  office  for  the 
term  of  two.  three,  four,  five,  and  six  years,  respectively,  from  the 
first  day  of  January,  Anno  Domini  eighteen  hundred  and  eighty-seven, 
the  term  of  each  to  be  designated  by  the  President;  but  their  succes- 
sors shall  be  appointed  for  terms  of  six  years,  except  that  any  person 
chosen  to  fill  a  vacancy  shall  be, appointed  only  for  the  unexpired  time 
of  the  Commissioner  wrhom  he  shall  succeed.  Any  Commissioner  may 
be  removed  by  the  President  for  inefficiency,  neglect  of  duty,  or  mal- 
feasance in  office.  Not  more  than  three  of  the  Commissioners  shall 
be  appointed  from  the  same  political  party.  No  persgn  in  the  employ 
of  or  holding  any  official  relation  to  any  common  carrier  subject  to 
the  provisions  of  this  act.  or  owning  stock  or  bonds  thereof,  or  who  is 
in  any  manner  pecuniarily  interested  therein,  shall  enter  upon  the 
duties  of  or  hold  such  office.  Said  Commissioners  shall  not  engage 
in  any  other  business,  vocation,  or  employment.  No  vacancy  in  the 
Commission  shall  impair  the  right  of  the  remaining  Commissioners 
to  exercise  all  the  powers  of  the  Commission.  (See  section  24,  enlarg- 
ing Commission  and  increasing  salaries.} 

SEC.  12.     (As  amended  March  2,  1889,  and  February  10,  1891.) 


ACT  TO  REGULATE  COMMERCE  287 

That  the  Commission  hereby  created  shall  have  authority  to  inquire 
into  the  management  of  the  business  of  all  common  carriers  subject 
to  the  provisions  of  this  Act,  and  shall  keep  itself  informed  as  to  the 
manner  and  method  in  which  the  same  is  conducted,  and  shall  have  the 
right  to  obtain  from  such  common  carriers  full  and  complete  infor- 
mation necessary  to  enable  the  Commission  to  perform  the  duties  and 
carry  out  the  objects  for  which  it  was  created;  and  the  Commission 
is  hereby  authorized  and  required  to  execute  and  enforce  the  provi- 
sions of  this  Act;  and,  upon  the  request  of  the  Commission,  it  shall 
be  the  duty  of  any  district  attorney  of  the  United  States  to  whom  the 
Commission  may  apply  to  institute  in  the  proper  court  and  to  prose- 
cute under  the  direction  of  the  Attorney-General  of  the  United  States 
all  necessary  proceedings  for  the  enforcement  of  the  provisions  of  this 
Act  and  for  the  punishment  of  all  violations  thereof,  and  the  costs 
and  expenses  of  such  prosecution  shall  be  paid  out  of  the  appropria- 
tion for  the  expenses  of  the  courts  of  the  United  States;  and  for  the 
purposes  of  this  Act  the  Commission  shall  have  power  to  require,  by 
subpoena,  the  attendance  and  testimony  of  witnesses  and  the  produc- 
tion of  all  books,  papers,  tariffs,  contracts,  agreements,  and  docu- 
ments relating  to  any  matter  under  investigation. 

Such  attendance  of  witnesses,  and  the  production  of  such  docu- 
mentary evidence,  may  be  required  from  any  place  in  the  United 
States,  at  any  designated  place  of  hearing.  And  in  case  of  diso- 
bedience to  a  subpoena  the  Commission,  or  any  party  to  a  proceeding 
before  the  Commission,  may  invoke  the  aid  of  any  court  of  the  United 
States  in  requiring  the  attendance  and  testimony  of  witnesses  and  the 
production  of  books,  papers,  and  documents  under  the  provisions  of 
this  section. 

And  any  of  the  circuit  courts  of  the  United  States  within  the  juris- 
diction of  which  such  inquiry  is  carried  on  may,  in  case  of  contumacy 
or  refusal  to  obey  a  subpoena  issued  to  any  common  carrier  subject 
to  the  provisions  of  this  Act,  or  other  person,  issue  an  order  requiring 
such  common  carrier  or  other  person  to  appear  before  said  Commis- 
sion (and  produce  books  and  papers  if  so  ordered)  and  give  evidence 
touching  the  matter  in  question;  and  any  failure  to  obey  such  order 
of  the  court  may  be  punished  by  such  court  as  a  contempt  thereof. 
The  claim  that  any  such  testimony  or  evidence  may  tend  to  criminate 
the  person  giving  such  evidence  shall  not  excuse  such  witness  from 
testifying;  but  such  evidence  or  testimony  shall  not  be  used  against 
such  person  on  the  trial  of  any  criminal  proceeding. 

The  testimony  of  any  witness  may  be  taken,  at  the  instance  of  a 
party  in  any  proceeding  or  investigation  depending  before  the  Com- 
mission, by  deposition,  at  any  time  after  a  cause  or  proceeding  is  at 
issue  on  petition  and  answer.  The  Commission  may  also  order  testi- 
mony to  be  taken  by  deposition  in  any  proceeding  or  investigation 
pending  before  it,  at  any  stage  of  such  proceeding  or  investigation. 
Such  depositions  may  be  taken  before  any  judge  of  any  court  of  the 
United  States,  or  any  commissioner  of  a  circuit,  or  any  clerk  of  a  dis- 
trict or  circuit  court,  or  any  chancellor,  justice,  or  judge  of  a  supreme 
or  superior  court,  mayor  or  chief  magistrate  of  a  city,  judge  of  a 
county  court,  or  court  of  common  pleas  of  any  of  the  United  States, 
or  any  notary  public,  not  being  of  counsel  or  attorney  to  either  of  the 
parties,  nor  interested  in  the  event  of  the  proceeding  or  investigation. 


288  ACT  TO  REGULATE  COMMERCE 

Reasonable  notice  must  first  be  given  in  writing  by  the  party,  or  his 
attorney,  proposing  to  take  such  deposition  to  the  opposite  party  or 
his  attorney  of  record,  as  either  may  be  nearest,  which  notice  shall 
state  the  name  of  the  witness  and  the  time  and  place  of  the  taking 
of  his  deposition.  Any  person  may  be  compelled  to  appear  and  de- 
pose, and  to  produce  documentary  evidence,  in  the  same  manner  as 
witnesses  may  be  compelled  to  appear  and  testify  and  produce  docu- 
mentary evidence  before  the  Commission  as  hereinbefore  provided. 

Every  person  deposing  as  herein  provided  shall  be  cautioned  and 
sworn  (or  affirm,  if  he  so  request)  to  testify  the  whole  truth,  and 
shall  be  carefully  examined.  His  testimony  shall  be  reduced  to  writ- 
ing by  the  magistrate  taking  the  deposition,  or  under  his  direction, 
and  shall,  after  it  has  been  reduced  to  writing,  be  subscribed  by  the 
deponent. 

If  a  witness  whose  testimony  may  be  desired  to  be  taken  by  deposi- 
tion be  in  a  foreign  country,  the  deposition  may  be  taken  before  an 
officer  or  person  designated  by  the  Commission,  or  agreed  upon  by  the 
parties  by  stipulation  in  writing  to  be  filed  with  the  Commission.  All 
depositions  must  be  promptly  filed  with  the  Commission. 

Witnesses  whose  depositions  are  taken  pursuant  to  this  Act,  and 
the  magistrate  or  other  officer  taking  the  same,  shall  severally  be 
entitled  to  the  same  fees  as  are  paid  for  like  services  in  the  courts 
of  the  United  States. 

SEC.  13.  That  any  person,  firm,  corporation,  or  association,  or  any 
mercantile,  agricultural,  or  manufacturing  society,  or  any  body  politic 
or  municipal  organization  complaining  of  anything  done  or  omitted 
to  be  done  by  any  common  carrier  subject  to  the  provisions  of  this 
Act  in  contravention  of  the  provisions  thereof,  may  apply  to  said 
Commission  by  petition,  which  shall  briefly  state  the  facts;  where- 
upon a  statement  of  the  charges  thus  made  shall  be  forwrarded  by  the 
Commission  to  such  common  carrier,  who  shall  be  called  upon  to  sat- 
isfy the  complaint  or  to  answer  the  same  in  writing  within  a  reason- 
able time,  to  be  specified  by  the  Commission.  If  such  common  carrier, 
within  the  time  specified,  shall  make  reparation  for  the  injury  alleged 
to  have  been  done,  said  carrier  shall  be  relieved  of  liability  to  the 
complainant  only  for  the  particular  violation  of  law  thus  complained 
of.  If  such  carrier  shall  not  satisfy  the  complaint  within  the  time  speci- 
fied, or  there  shall  appear  to  be  any  reasonable  ground  for  investi- 
gating said  complaint,  it  shall  be  the  duty  of  the  Commission  to  in- 
vestigate the  matters  complained  of  in  such  manner  and  by  such  means 
as  it  shall  deem  proper. 

Said  Commission  shall  in  like  manner  investigate  any  complaint  for- 
warded by  the  railroad  commissioner  or  railroad  commission  of  any 
State  or  Territory,  at  the  request  of  such  commissioner  or  commis- 
sion, and  may  institute  any  inquiry  on  its  own  motion  in  the  same 
manner  and  to  the  same  effect  as  though  complaint  had  been  made. 

No  complaint  shall  at  any  time  be  dismissed  because  of  the  ab- 
sence of  direct  damage  to  the  complainant. 

SEC.  14.  (Amended  March  2, 1889,  and  June  29,  1906.)  That  when- 
ever an  investigation  shall  be  made  by  said  Commission,  it  shall  be 
its  duty  to  make  a  report  in  writing  in  respect  thereto,  which  shall 
state  the  conclusions  of  the  Commission,  together  with  its  decision, 
order,  or  requirement  in  the  premises;  and  in  case  damages  are 


ACT  TO  REGULATE  COMMERCE  289 

awarded  such  report  shall  include  the  findings  of  fact  on  which  the 
award  is  made. 

All  reports  of  investigations  made  by  the  Commission  shall  be  en- 
tered of  record,  and  a  copy  thereof  shall  be  furnished  to  the  party 
who  may  have  complained,  and  to  any  common  carrier  that  may  have 
been  complained  of. 

The  Commission  may  provide  for  the  publication  of  its  reports  and 
decisions  in  such  form  and  manner  as  may  be  best  adapted  for  public 
information  and  use,  and  such  authorized  publications  shall  be  com- 
petent evidence  of  the  reports  and  decisions  of  the  Commission  therein 
contained  in  all  courts  of  the  United  States  and  of  the  several  States 
without  any  further  proof  or  authentication  thereof.  The  Commis- 
sion may  also  cause  to  be  printed  for  early  distribution  its  annual  re- 
ports. 

SEC.  15.  (As  amended  June  29,  1906.)  That  the  Commission  is 
authorized  and  empowered,  and  it  shall  be  its  duty,  whenever,  after 
full  hearing  upon  a  complaint  made  as  provided  in  section  thirteen 
of  this  Act,  or  upon  complaint  of  any  common  carrier,  it  shall  be  of 
the  opinion  that  any  of  the  rates,  or  charges  whatsoever,  demanded, 
charged,  or  collected  by  any  common  carrier  or  carriers,  subject  to  the 
provisions  of  this  Act,  for  the  transportation  of  persons  or  property  as 
defined  in  the  first  section  of  this  Act,  or  that  any  regulations  or  prac- 
tices whatsoever  of  such  carrier  or  carriers  affecting  such  rates,  are 
unjust  or  unreasonable,  or  unjustly  discriminatory,  or  unduly  prefer- 
ential or  prejudicial,  or  otherwise  in  violation  of  any  of  the  provisions 
of  this  Act,  to  determine  and  prescribe  what  will  be  the  just  and 
reasonable  rate  or  rates,  charge  or  charges,  to  be  thereafter  observed 
in  such  case  as  the  maximum  to  be  charged;  and  what  regulation  or 
practice  in  respect  to  such  transportation  is  just,  fair,  and  reasonable 
to  be  thereafter  followed ;  and  to  make  an  order  that  the  carrier  shall 
cease  and  desist  from  such  violation,  to  the  extent  to  which  the  Com- 
mission find  the  same  to  exist,  and  shall  not  thereafter  publish,  de- 
mand, or  collect  any  rate  or  charge  for  such  transportation  in  excess 
of  the  maximum  rate  or  charge  so  prescribed,  and  shall  conform  to 
the  regulation  or  practice  so  prescribed.  All  orders  of  the  Commis- 
sion, except  orders  for  the  payment  of  money,  shall  take  effect  within 
such  reasonable  time,  not  less  than  thirty  days,  and  shall  continue  in 
force  for  such  period  of  time,  not  exceeding  two  years,  as  shall  be 
prescribed  in  the  order  of  the  Commission,  unless  the  same  shall  be 
suspended  or  modified  or  set  aside  by  the  Commission  or  be  suspended 
or  set  aside  by  a  court  of  competent  jurisdiction.  Whenever  the  car- 
rier or  carriers,  in  obedience  to  such  order  of  the  Commission  or  other- 
wise, in  respect  to  joint  rates,  fares,  or  charges,  shall  fail  to  agree 
among  themselves  upon  the  apportionment  or  division  thereof,  the 
Commission  may  after  hearing  make  a  supplemental  order  prescribing 
the  just  and  reasonable  proportion  of  such  joint  rate  to  be  received 
by  each  carrier  party  thereto,  which  order  shall  take  effect  as  a  part 
of  the  original  order. 

The  Commission  may  also,  after  hearing  on  a  complaint,  establish 
through  routes  and  joint  rates  as  the  maximum  to  be  charged  and 
prescribe  the  division  of  such  rates  as  hereinbefore  provided,  and  the 
terms  and  conditions  under  which  such  through  routes  shall  be  oper- 
ated, when  that  may  be  necessary  to  give  effect  to  any  provision  of 


290  ACT  TO  REGULATE  COMMERCE 

this  Act,  and  the  carriers  complained  of  have  refused  or  neglected  to 
voluntarily  establish  such  through  routes  and  joint  rates,  provided  no 
reasonable  or  satisfactory  through  route  exists,  and  this  provision 
shall  apply  when  one  of  the  connecting  carriers  is  a  water  line. 

If  the  owner  of  property  transported  under  this  Act  directly  or  in- 
directly renders  any  service  connected  with  such  transportation,  or 
furnishes  any  instrumentality  used  therein,  the  charge  and  allowance 
therefor  shall  be  no  more  than  is  just  and  reasonable,  and  the  Com- 
mission may,  after  hearing  on  a  complaint,  determine  what  is  a  rea- 
sonable charge  as  the  maximum  to  be  paid  by  the  carrier  or  carriers 
for  the  service  so  rendered  or  for  the  use  of  the  instrumentality  so 
furnished,  and  fix  the  same  by  appropriate  order,  which  order  shall 
have  the  same  force  and  effect  and  be  enforced  in  like  manner  as  the 
orders  above  provided  for  in  this  section. 

The  foregoing  enumeration  of  powers  shall  not  exclude  any  power 
which  the  Commission  would  otherwise  have  in  the  making  of  an 
order  under  the  provisions  of  this  Act.1 

SEC.  16  (Amended  March  2,  1889.  Following  section  substituted 
June  29,  1906.)  That  if,  after  hearing  on  a  complaint  made  as  pro- 
vided in  section  thirteen  of  this  Act,  the  Commission  shall  determine 
that  any  party  complainant  is  entitled  to  an  award  of  damages  under 
the  provisions  of  this  Act  for  a  violation  thereof,  the  Commission  shall 
make  an  order  directing  the  carrier  to  pay  to  the  complainant  the 
sum  to  which  he  is  entitled  on  or  before  a  day  named. 

If  a  carrier  does  not  comply  with  an  order  for  the  payment  of 
money  within  the  time  limit  in  such  order,  the  complainant,  or  any 
person  for  whose  benefit  such  order  was  made,  may  file  in  the  circuit 
court  of  the  United  States  for  the  district  in  which  he  resides  or  in 
which  is  located  the  principal  operating  office  of  the  carrier,  or  through 
which  the  road  of  the  carrier  runs,  a  petition  setting  forth  briefly 
the  causes  for  which  he  claims  damages,  and  the  order  of  the  Commis- 
sion in  the  premises.  Such  suit  shall  proceed  in  all  respects  like  other 
civil  suits  for  damages,  except  that  on  the  trial  of  such  suit  the  find- 
ings and  order  of  the  Commission  shall  be  prima  facie  evidence  of  the 
facts  therein  stated,  and  except  that  the  petitioner  shall  not  be  liable 
for  costs  in  the  circuit  court  nor  for  costs  at  any  subsequent  stage 
of  the  proceedings  unless  they  accrue  upon  his  appeal.  If  the  peti- 
tioner shall  finally  prevail  he  shall  be  allowed  a  reasonable  attorney's 

1  Former  section  15,  read:  "That  if  in  any  case  in  which  an  investigation  shall 
be  made  by  said  Commission  it  shall  be  made  to  appear  to  the  satisfaction  of 
the  Commission,  either  by  the  testimony  of  witnesses  or  other  evidence,  that  any- 
thing has  been  done  or  omitted  to  be  done  in  violation  of  the  provisions  of  this 
act,  or  of  any  law  cognizable  by  said  Commission,  by  any  common  carrier,  or 
that  any  injury  or  damage  has  been  sustained  by  the  party  or  parties  complain- 
ing, or  by  other  parties  aggrieved  in  consequence  of  any  such  violation,  it  shall 
be  the  duty  of  the  Commission  to  forthwith  cause  a  copy  of  its  report  in  respect 
thereto  to  be  delivered  to  such  common  carrier,  together  with  a  notice  to  said 
common  carrier  to  cease  and  desist  from  such  violation,  or  to  make  reparation 
for  the  injury  so  found  to  have  been  done,  or  both,  within  a  reasonable  time,  to  be 
specified  by  the  Commission;  and  if,  within  the  time  specified,  it  shall  be  made  to 
appear  to  the  Commission  that  such  common  carrier  has  ceased  from  such  violation 
of  law,  and  has  made  reparation  for  the  injury  found  to  have  been  done,  in  com- 
pliance with  the  report  and  notice  of  the  Commission,  or  to  the  satisfaction  of 
the  party  complaining,  a  statement  to  that  effect  shall  be  entered  of  record  by 
the  Commission,  and  the  said  common  carrier  shall  thereupon  be  relieved  from 
further  liability  or  penalty  for  such  particular  violation  of  law." 


ACT  TO  REGULATE  COMMERCE  291 

fee,  to  be  taxed  and  collected  as  a  part  of  the  costs  of  the  suit.  All 
complaints  for  the  recovery  of  damages  shall  be  filed  with  the  Com- 
mission within  two  years  from  the  time  the  cause  of  action  accrues, 
and  not  after,  and  a  petition  for  the  enforcement  of  an  order  for  the 
payment  of  money  shall  be  filed  in  the  circuit  court  within  one  year 
from  the  date  of  the  order,  and  not  after :  Provided,  That  claims  ac- 
crued prior  to  the  passage  of  this  Act  may  be  presented  within  one 
year. 

In  such  suits  all  parties  in  whose  favor  the  Commission  may  have 
made  an  award  for  damages  by  a  single  order  may  be  joined  as  plain- 
tiffs, and  all  of  the  carriers  parties  to  such  order  awarding  such  dam- 
ages may  be  joined  as  defendants,  and  such  suit  may  be  maintained 
by  such  joint  plaintiffs  and  against  such  joint  defendants  in  any 
district  where  any  one  of  such  joint  plaintiffs  could  maintain  such 
suit  against  any  one  of  such  joint  defendants ;  and  service  of  process 
against  any  one  of  such  defendants  as  may  not  be  found  in  the  district 
where  the  suit  is  brought  may  be  made  in  any  district  where  such 
defendant  carrier  has  its  principal  operating  office.  In  case  of  such 
joint  suit  the  recovery,  if  any,  may  be  by  judgment  in  favor  of  any 
one  of  such  plaintiffs,  against  the  defendant  found  to  be  liable  to  such 
plaintiff. 

Every  order  of  the  Commission  shall  be  forthwith  served  by  mailing 
to  any  one  of  the  principal  officers  or  agents  of  the  carrier  at  his 
usual  place  of  business  a  copy  thereof;  and  the  registry  mail  receipt 
shall  be  prima  facie  evidence  of  the  receipt  of  such  order  by  the  car- 
rier in  due  course  of  mail. 

The  Commission  shall  be  authorized  to  suspend  or  modify  its  orders 
upon  such  notice  and  in  such  manner  as  it  shall  deem  proper. 

It  shall  be  the  duty  of  every  common  carrier,  its  agents  and  em- 
ployees, to  observe  and  comply  with  such  orders  so  long  as  the  same 
shall  remain  in  effect. 

Any  carrier,  any  officer,  representative,  or  agent  of  a  carrier,  or  any 
receiver,  trustee,  lessee,  or  agent  of  either  of  them,  who  knowingly 
fails  or  neglects  to  obey  any  order  made  under  the  provisions  of  sec- 
tion fifteen  of  this  Act  shall  forfeit  to  the  United  States  the  sum  of 
five  thousand  dollars  for  each  offense.  Every  distinct  violation  shall 
be  a  separate  offense,  and  in  case  of  a  continuing  violation  each  day 
shall  be  deemed  a  separate  offense. 

The  forfeiture  provided  for  in  this  Act  shall  be  payable  into  the 
Treasury  of  the  United  States,  and  shall  be  recoverable  in  a  civil  suit 
in  the  name  of  the  United  States,  brought  in  the  district  where  the 
carrier  has  its  principal  operating  office,  or  in  any  district  through 
which  the  road  of  the  carrier  runs. 

It  shall  be  the  duty  of  the  various  district  attorneys,  under  the 
direction  of  the  Attorney-General  of  the  United  States,  to  prosecute 
for  the  recovery  of  forfeitures.  The  costs  and  expenses  of  such  prose- 
cution shall  be  paid  out  of  the  appropriation  for  the  expenses  of  the 
courts  of  the  United  States.  The  Commission  may,  with  the  consent 
of  the  Attorney-General,  employ  special  counsel  in  any  proceeding 
under  this  Act,  paying  the  expenses  of  such  employment  out  of  its 
own  appropriation. 

If  any  carrier  fails  or  neglects  to  obey  any  order  of  the  Commis- 
sion, other  than  for  the  payment  of  money,  while  the  same  is  in  effect, 


292  ACT  TO  REGULATE  COMMERCE 

any  party  injured  thereby,  or  the  Commission  in  its  own  name,  may 
apply  to  the  circuit  court  in  the  district  where  such  carrier  has  its 
principal  operating  office,  or  in  which  the  violation  or  disobedience  of 
such  order  shall  happen,  for  an  enforcement  of  such  order.  Such  ap- 
plication shall  be  by  petition,  which  shall  state  the  substance  of  the 
order  and  the  respect  in  which  the  carrier  has  failed  of  obedience, 
and  shall  be  served  upon  the  carrier  in  such  manner  as  the  court  may 
direct,  and  the  court  shall  prosecute  such  inquiries  and  make  such 
investigations,  through  such  means  as  it  shall  deem  needful  in  the  as- 
certainment of  the  facts  at  issue  or  which  may  arise  upon  the  hearing 
of  such  petition.  If,  upon  such  hearing  as  the  court  may  determine  to 
be  necessary,  it  appears  that  the  order  was  regularly  made  and  duly 
served,  and  that  the  carrier  is  in  disobedience  of  the  same,  the  court 
shall  enforce  obedience  to  such  order  by  a  writ  of  injunction,  or  other 
proper  process,  mandatory  or  otherwise,  to  restrain  such  carrier,  its 
officers,  agents,  or  representatives,  from  further  disobedience  of  such 
order,  or  to  enjoin  upon  it,  or  them,  obedience  to  the  same;  and  in 
the  enforcement  of  such  process  the  court  shall  have  those  powers 
ordinarily  exercised  by  it  in  compelling  obedience  to  its  writs  of  in- 
junction and  mandamus. 

From  any  action  upon  such  petition  an  appeal  shall  lie  by  either 
party  to  the  Supreme  Court  of  the  United  States,  and  in  such  court 
the  case  shall  have  priority  in  hearing  and  determination  over  all 
other  causes  except  criminal  causes,  but  such  appeal  shall  not  vacate 
or  suspend  the  order  appealed  from. 

The  venue  of  suits  brought  in  any  of  the  circuit  courts  of  the  United 
States  against  the  Commission  to  enjoin,  set  aside,  annul,  or  suspend 
any  order  or  requirement  of  the  Commission  shall  be  in  the  district 
where  the  carrier  against  whom  such  order  or  requirement  may  have 
been  made  has  its  principal  operating  office,  and  may  be  brought  at 
any  time  after  such  order  is  promulgated.  And  if  the  order  or  re- 
quirement has  been  made  against  two  or  jnore  carriers  then  in  the  dis- 
trict where  any  one  of  said  carriers  has  its  principal  operating  of- 
fice, and  if  the  carrier  has  its  principal  operating  office  in  the  District 
of  Columbia  then  the  venue  shall  be  in  the  district  where  said  carrier 
has  its  principal  office;  and  jurisdiction  to  hear  and  determine  such 
suits  is  hereby  vested  in  such  courts.  The  provisions  of  "An  Act  to 
expedite  the  hearing  and  determination  of  suits  in  equity,  and  so 
forth,"  approved  February  eleventh,  nineteen  hundred  and  three, 
shall  be,  and  are  hereby,  made  applicable  to  all  such  suits,  includ- 
ing the  hearing  on  an  application  for  a  preliminary  injunction  and 
also  made  applicable  to  any  proceeding  in  equity  to  enforce  any 
order  or  requirement  of  the  Commission,  or  any  of  the  provisions  of 
the  Act  to  regulate  commerce  approved  February  fourth,  eighteen 
hundred  and  eighty-seven,  and  all  Acts  amendatory  thereof  or  sup- 
plemental thereto.  It  shall  be  the  duty  of  the  Attorney-General  in 
every  such  case  to  file  the  certificate  provided  for  in  said  expediting 
Act  of  February  eleventh,  nineteen  hundred  and  three,  as  necessary 
to  the  application  of  the  provisions  thereof,  and  upon  appeal  as  there- 
in authorized  to  the  Supreme  Court  of  the  United  States,  the  case  shall 
have  in  such  court  priority  in  hearing  and  determination  over  all 
other  causes  except  criminal  causes:  Provided.  That  no  injunction, 
interlocutory  order  or  decree  suspending  or  restraining  the  enforce- 


ACT  TO  REGULATE  COMMERCE  293 

ment  of  an  order  of  the  Commission  shall  be  granted  except  on  hear- 
ing after  not  less  than  five  days'  notice  to  the  Commission.  An  ap- 
peal may  be  taken  from  any  interlocutory  order  or  decree  granting 
or  continuing  an  injunction  in  any  suit,  but  shall  lie  only  to  the  Su- 
preme Court  of  the  United  States:  Provided  further,  That  the  ap- 
peal must  be  taken  within  thirty  days  from  the  entry  of  such  order 
or  decree  and  it  shall  take  precedence  in  the  appellate  court  over  all 
other  causes,  except  causes  of  like  character  and  criminal  causes. 

The  copies  of  schedules  and  tariffs  of  rates,  fares,  and  charges,  and 
of  all  contracts,  agreements,  or  arrangements  between  common  car- 
riers filed  with  the  Commission  as  herein  provided,  and  the  statistics, 
tables,  and  figures  contained  in  the  annual  reports  of  carriers  made 
to  the  Commission,  as  required  by  the  provisions  of  this  Act,  shall  be 
preserved  as  public  records  in  the  custody  of  the  secretary  of  the 
Commission,  and  shall  be  received  as  prima  facie  evidence  of  what 
they  purport  to  be  for  the  purpose  of  investigations  by  the  Commis- 
sion and  in  all  judicial  proceedings;  and  copies  of  or  extracts  from 
any  of  said  schedules,  tariffs,  contracts,  agreements,  arrangements,  or 
reports  made  public  records  as  aforesaid,  certified  by  the  secretary 
under  its  seal,  shall  be  received  in  evidence  with  like  effect  as  the 
originals. 

SEC.  16a.  (Added  June  29,  1906.)  That  after  a  decision,  order,  or 
requirement  has  been  made  by  the  Commission  in  any  proceeding  any 
party  thereto  may  at  any  time  make  application  for  rehearing  of  the 
same,  or  any  matter  determined  therein,  and  it  shall  be  lawful  for  the 
Commission  in  its  discretion  to  grant  such  a  rehearing  if  sufficient  rea- 
son therefor  be  made  to  appear.  Applications  for  rehearing  shall  be 
governed  by  such  general  rules  as  the  Commission  may  establish.  No 
such  application  shall  excuse  any  carrier  from  complying  with  or 
obeying  any  decision,  order,  or  requirement  of  the  Commission,  or 
operate  in  any  manner  to  stay  or  postpone  the  enforcement  thereof, 
without  the  special  order  of  the  Commission.  In  case  a  rehearing  is 
granted  the  proceedings  thereupon  shall  conform  as  nearly  as  may 
be  to  the  proceedings  in  an  original  hearing,  except  as  the  Commis- 
sion may  otherwise  direct;  and  if,  in  its  judgment,  after  such  re- 
hearing and  the  consideration  of  all  facts,  including  those  arising  since 
the  former  hearing,  it  shall  appear  that  the  original  decision,  order, 
or  requirement  is  in  any  respect  unjust  or  unwarranted,  the  Commis- 
sion may  reverse,  change,  or  modify  the  same  accordingly.  Any  deci- 
sion, order,  or  requirement  made  after  such  rehearing,  reversing, 
changing,  or  modifying  the  original  determination  shall  be  subject  to 
the  same  provisions  as  an  original  order. 

SEC.  17.  (As  amended  March  2,  1889.)  That  the  Commission  may 
conduct  its  proceedings  in  such  manner  as  will  best  conduce  to  the 
proper  dispatch  of  business  and  to  the  ends  of  justice.  A  majority  of 
the  Commission  shall  constitute  a  quorum  for  the  transaction  of 
business,  but  no  Commissioner  shall  participate  in  any  hearing  or 
proceeding  in  which  he  has  any  pecuniary  interest.  Said  Commis- 
sion may,  from  time  to  time,  make  or  amend  such  general  rules  or 
orders  as  may  be  requisite  for  the  order  and  regulation  of  proceed- 
ings before  it,  including  forms  of  notices  and  the  service  thereof, 
which  shall  conform,  as  nearly  as  may  be,  to  those  in  use  in  the 
courts  of  the  United  States.  Any  party  may  appear  before  said  Com- 


294  ACT  TO  REGULATE  COMMERCE 

mission  and  be  heard,  in  person  or  by  attorney.  Every  vote  and  of- 
ficial act  of  the  Commission  shall  be  entered  of  record,  and  its  pro- 
ceedings shall  be  public  upon  the  request  of  either  party  interested. 
Said  Commission  shall  have  an  official  seal,  which  shall  be  judicially 
noticed.  Either  of  the  members  of  the  Commission  may  administer 
oaths  and  affirmations  and  sign  subpoenas. 

SEC.  18.  (As  amended  March  2,  1889.)  [See  Section  24,  increasing 
salaries  of  Commissioners.]  That  each  Commissioner  shall  receive  an 
annual  salary  of  seven  thousand  five  hundred  dollars,  payable  in  the 
same  manner  as  the  judges  of  the  courts  of  the  United  States.  The 
Commission  shall  appoint  a  secretary,  who  shall  receive  an  annual 
salary  of  three  thousand  five  hundred  dollars,*  payable  in  like  man- 
ner. The  Commission  shall  have  authority  to  employ  and  fix  the 
compensation  of  such  other  employees  as  it  may  find  necessary  to  the 
proper  performance  of  its  duties.  Until  otherwise  provided  by  law, 
the  Commission  may  hire  suitable  offices  for  its  use,  and  shall  have 
authority  to  procure  all  necessary  office  supplies.  Witnesses  sum- 
moned before  the  Commission  shall  be  paid  the  same  fees  and  mileage 
that  are  paid  witnesses  in  the  courts  of  the  United  States. 

All  of  the  expenses  of  the  Commission,  including  all  necessary  ex- 
penses for  transportation  incurred  by  the  Commissioners,  or  by  their 
employees  under  their  orders,  in  making  any  investigation,  or  upon 
official  business  in  any  other  places  than  in  the  city  of  Washington, 
shall  be  allowed  and  paid  on  the  presentation  of  itemized  vouchers 
therefor  approved  by  the  chairman  of  the  Commission. 

SEC.  19.  That  the  principal  office  of  the  Commission  shall  be  in  the 
city  of  Washington,  where  its  general  sessions  shall  be  held;  but  when- 
ever the  convenience  of  the  public  or  the  parties  may  be  promoted, 
or  delay  or  expense  prevented  thereby,  the  Commission  may  hold 
special  sessions  in  any  part  of  the  United  States.  It  may,  by  one  or 
more  of  the  Commissioners,  prosecute  any  inquiry  necessary  to  its 
duties,  in  any  part  of  the  United  States,  into  any  matter  or  question 
of  fact  pertaining  to  the  business  of  any  common  carrier  subject  to 
the  provisions  of  this  Act. 

SEC.  20.  (As  amended  June  29,  1906.)  That  the  Commission  is 
hereby  authorized  to  require  annual  reports  from  all  common  car- 
riers subject  to  the  provisions  of  this  Act,  and  from  the  owners  of  all 
railroads  engaged  in  interstate  commerce  as  defined  in  this  Act;  to 
prescribe  the  manner  in  which  such  reports  shall  be  made,  and  to 
require  from  such  carriers  specific  answers  to  all  questions  upon  which 
the  Commission  may  need  information.  Such  annual  reports  shall 
show  in  detail  the  amount  of  capital  stock  issued,  the  amounts  paid 
therefor,  and  the  manner  of  payment  for  the  same;  the  dividends 
paid,  the  surplus  fund,  if  any,  and  the  number  of  stockholders;  the 
funded  and  floating  debts  and  the  interest  paid  thereon ;  the  cost  and 
value  of  the  carrier 's  property,  franchises,  and  equipments ;  the  num- 
ber of  employees  and  the  salaries  paid  each  class ;  the  accidents  to  pas- 
sengers, employees,  and  other  persons,  and  the  causes  thereof;  the 
amounts  expended  for  improvements  each  year,  how  expended,  and 
the  character  of  such  improvements;  the  earnings  and  receipts  from 
each  branch  of  business  and  from  all  sources;  the  operating  and 

•Increased  to  $5,000  by  sundry  civil  act  of  March  4,  1907  (34  Stat.  L.,  1311). 


ACT  TO  REGULATE  COMMERCE  295 

other  expenses ;  the  balances  of  profit  and  loss ;  and  a  complete  exhibit 
of  the  financial  operations  of  the  carrier  each  year,  including  an  an- 
nual balance  sheet.  Such  reports  shall  also  contain  such  information 
in  relation  to  rates  or  regulations  concerning  fares  or  freights,  or 
agreements,  arrangements,  or  contracts  affecting  the  same  as  the  Com- 
mission may  require;  and  the  Commission  may,  in  its  discretion,  for 
the  purpose  of  enabling  it  the  better  to  carry  out  the  purposes  of 
this  Act,  prescribe  a  period  of  time  within  which  all  common  car- 
riers subject  to  the  provisions  of  this  Act  shall  have,  as  near  as  may 
be,  a  uniform  system  of  accounts,  and  the  manner  in  which  such  ac- 
counts shall  be  kept. 

Said  detailed  reports  shall  contain  all  the  required  statistics  for  the 
period  of  twelve  months  ending  on  the  thirtieth  day  of  June  in  each 
year,  and  shall  be  made  out  under  oath  and  filed  with  the  Commis- 
sion, at  its  office  in  Washington,  on  or  before  the  thirtieth  day  of 
September  then  next  following,  unless  additional  time  be  granted  in 
any  case  by  the  Commission ;  and  if  any  carrier,  person,  or  corpora- 
tion subject  to  the  provisions  of  this  Act  shall  fail  to  make  and  file 
said  annual  reports  within  the  time  above  specified,  or  within  the 
time  extended  by  the  Commission  for  making  and  filing  the  same,  or 
shall  fail  to  make  specific  answer  to  any  question  authorized  by  the 
provisions  of  this  section  within  thirty  days  from  the  time  it  is  law- 
fully required  so  to  do,  such  parties  shall  forfeit  to  the  United  States 
the  sum  of  one  hundred  dollars  for  each  and  every  day  it  shall  con- 
tinue to  be  in  default  with  respect  thereto.  The  Commission  shall 
also  have  authority  to  require  said  carriers  to  file  monthly  reports  of 
earnings  and  expenses  or  special  reports  within  a  specified  period,  and 
if  any  such  carrier  shall  fail  to  file  such  reports  within  the  time  fixed 
by  the  Commission  it  shall  be  subject  to  the  forfeitures  last  above  pro- 
vided. 

Said  forfeitures  shall  be  recovered  in  the  manner  provided  for  the 
recovery  of  forfeitures  under  the  provisions  of  this  Act. 

The  oath  required  by  this  section  may  be  taken  before  any  person 
authorized  to  administer  an  oath  by  the  laws  of  the  State  in  which 
the  same  is  taken. 

The  Commission  may,  in  its  discretion,  prescribe  the  forms  of  any 
and  all  accounts,  records,  and  memoranda  to  be  kept  by  carriers  sub- 
ject to  the  provisions  of  this  Act,  including  the  accounts,  records,  and 
memoranda  of  the  movement  of  traffic  as  well  as  the  receipts  and  ex- 
penditures of  moneys.  The  Commission  shall  at  all  times  have  ac- 
cess to  all  accounts,  records,  and  memoranda  kept  by  carriers  subject 
to  this  Act,  and  it  shall  be  unlawful  for  such  carriers  to  keep  any  other 
accounts,  records,  or  memoranda  than  those  prescribed  or  approved  by 
the  Commission,  and  it  may  employ  special  agents  or  examiners,  who 
shall  have  authority  under  the  order  of  the  Commission  to  inspect  and 
examine  any  and  all  accounts,  records,  and  memoranda  kept  by  such 
carriers.  This  provision  shall  apply  to  receivers  of  carriers  and  oper- 
ating trustees. 

In  case  of  failure  or  refusal  on  the  part  of  any  such  carrier,  re- 
ceiver, or  trustee  to  keep  such  accounts,  records,  and  memoranda  on 
the  books  and  in  the  manner  prescribed  by  the  Commission,  or  to 
submit  such  accounts,  records,  and  memoranda  as  are  kept  to  the  in- 
spection of  the  Commission  or  any  of  its  authorized  agents  or  exam- 


296  ACT  TO  REGULATE  COMMERCE 

iners,  such  carrier,  receiver,  or  trustee  shall  forfeit  to  the  United 
States  the  sum  of  five  hundred  dollars  for  each  such  offense  and  for 
each  and  every  day  of  the  continuance  of  such  offense,  such  for- 
feitures to  be  recoverable  in  the  same  manner  as  other  forfeitures 
provided  for  in  this  Act. 

Any  person  who  shall  willfully  make  any  false  entry  in  the  ac- 
counts of  any  book  of  accounts  or  in  any  record  or  memoranda  kept 
by  a  carrier,  or  who  shall  willfully  destroy,  mutilate,  alter,  or  by 
any  other  means  or  device  falsify  the  record  of  any  such  account,  rec- 
ord, or  memoranda,  or  who  shall  willfully  neglect  or  fail  to  make  full, 
true,  and  correct  entries  in  such  accounts,  records,  or  memoranda  of 
all  facts  and  transactions  appertaining  to  the  carrier's  business,  or 
shall  keep  any  other  accounts,  records,  or  memoranda  than  those  pre- 
scribed or  approved  by  the  Commission,  shall  be  deemed  guilty  of  a 
misdemeanor  and  shall  be  subject,  upon  conviction  in  any  court  of 
the  United  States  of  competent  jurisdiction,  to  a  fine  of  not  less  than 
one  thousand  dollars  nor  more  than  five  thousand  dollars,  or  impris- 
onment for  a  term  not  less  than  one  year  nor  more  than  three  years, 
or  both  such  fine  and  imprisonment. 

Any  examiner  who  divulges  any  fact  or  information  which  may 
come  to  his  knowledge  during  the  course  of  such  examination,  ex- 
cept in  so  far  as  he  may  be  directed  by  the  Commission  or  by  a  court 
or  judge  thereof,  shall  be  subject,  upon  conviction  in  any  court  of  the 
United  States  of  competent  jurisdiction,  to  a  fine  of  not  more  than 
five  thousand  dollars  or  imprisonment  for  a  term  not  exceeding  two 
years,  or  both. 

That  the  circuit  and  district  courts  of  the  United  States  shall  have 
jurisdiction,  upon  the  application  of  the  Attorney-General  of  the 
United  States  at  the  request  of  the  Commission,  alleging  a  failure  to 
comply  with  or  a  violation  of  any  of  the  provisions  of  said  Act  to  reg- 
ulate commerce  or  of  any  Act  supplementary  thereto  or  amendatory 
thereof  by  any  common  carrier,  to  issue  a  writ  or  writs  of  mandamus 
commanding  such  common  carrier  to  comply  with  the  provisions  of 
said  Acts,  or  any  of  them. 

And  to  carry  out  and  give  effect  to  the  provisions  of  said  Acts,  or 
any  of  them,  the  Commission  is  hereby  authorized  to  employ  special 
agents  or  examiners  who  shall  have  power  to  administer  oaths,  examine 
witnesses,  and  receive  evidence. 

That  any  common  carrier,  railroad,  or  transportation  company  re- 
ceiving property  for  transportation  from  a  point  in  one  State  to  a 
point  in  another  State  shall  issue  a  receipt  or  bill  of  lading  therefor 
and  shall  be  liable  to  the  lawful  holder  thereof  for  any  loss,  damage, 
or  injury  to  such  property  caused  by  it  or  by  any  common  carrier, 
railroad,  or  transportation  company  to  which  such  property  may  be 
delivered  or  over  whose  line  or  lines  such  property  may  pass,  and  no 
contract,  receipt,  rule,  or  regulation  shall  exempt  such  common  car- 
rier, railroad,  or  transportation  company  from  the  liability  hereby  im- 
posed: Provided,  That  nothing  in  this  section  shall  deprive  any 
holder  of  such  receipt  or  bill  of  lading  of  any  remedy  or  right  of 
action  which  he  has  under  existing  law. 

That  the  common  carrier,  railroad,  or  transportation  company  is- 
suing such  receipt  or  bill  of  lading  shall  be  entitled  to  recover  from 
the  common  carrier,  railroad,  or  transportation  company  on  whose 


ACT  TO  REGULATE  COMMERCE  297 

line  the  loss,  damage,  or  injury  shall  have  been  sustained  the  amount 
of  such  loss,  damage,  or  injury  as  it  may  be  required  to  pay  to  the 
owners  of  such  property,  as  may  be  evidenced  by  any  receipt,  judg- 
ment, or  transcript  thereof. 

SEC.  21.  (As  amended  March  2,  1889.)  That  the  Commission  shall, 
on  or  before  the  first  day  of  December  in  each  year,  make  a  report, 
which  shall  be  transmitted  to  Congress,  and  copies  of  which  shall  be 
distributed  as  are  the  other  reports  transmitted  to  Congress.  This  re- 
port shall  contain  such  information  and  data  collected  by  the  Com- 
mission as  may  be  considered  of  value  in  the  determination  of  ques- 
tions connected  with  the  regulation  of  commerce,  together  with  such 
recommendations  as  to  additional  legislation  relating  thereto  as  the 
Commission  may  deem  necessary ;  and  the  names  and  compensation  of 
the  persons  employed  by  said  Commission. 

SEC.  22.  (As  amended  March  2,  1889,  and  February  8,  1895.)  [See 
section  1,  £th  par.].  That  nothing  in  this  Act  shall  prevent  the  car- 
riage, storage,  or  handling  of  property  free  or  at  reduced  rates  for  the 
United  States,  State,  or  municipal  governments,  or  for  charitable  pur- 
poses, or  to  or  from  fairs  and  expositions  for  exhibition  thereat,  or 
the  free  carriage  of  destitute  and  homeless  persons  transported  by 
charitable  societies,  and  the  necessary  agents  employed  in  such  trans- 
portation, or  the  issuance  of  mileage,  excursion,  or  commutation  pas- 
senger tickets ;  nothing  in  this  Act  shall  be  construed  to  prohibit  any 
common  carrier  from  giving  reduced  rates  to  ministers  of  religion, 
or  to  municipal  governments  for  the  transportation  of  indigent  per- 
sons, or  to  inmates  of  the  National  Homes  or  State  Homes  for  Disabled 
Volunteer  Soldiers,  and  of  Soldiers'  and  Sailors'  Orphan  Homes,  in- 
cluding those  about  to  enter  and  those  returning  home  after  discharge, 
under  arrangements  with  the  boards  of  managers  of  said  homes ;  noth- 
ing in  this  Act  shall  be  construed  to  prevent  railroads  from  giving 
free  carriage  to  their  own  officers  and  employees,  or  to  prevent  the 
principal  officers  of  any  railroad  company  or  companies  from  exchang- 
ing passes  or  tickets  with  other  railroad  companies  for  their  officers 
and  employees;  and  nothing  in  this  Act  contained  shall  in  any  way 
abridge  or  alter  the  remedies  now  existing  at  common  law  or  by  stat- 
ute, but  the  provisions  of  this  Act  are  in  addition  to  such  remedies: 
Provided,  That  no  pending  litigation  shall  in  any  way  be  affected  by 
this  Act:  Provided  further,  That  nothing  in  this  Act  shall  prevent 
the  issuance  of  joint  interchangeable  five-thousand-mile  tickets,  with 
special  privileges  as  to  the  amount  of  free  baggage  that  may  be  car- 
ried under  mileage  tickets  of  one  thousand  or  more  miles.  But  before 
any  common  carrier,  subject  to  the  provisions  of  this  Act,  shall  issue 
any  such  joint  interchangeable  mileage  tickets  with  special  privileges, 
as  aforesaid,  it  shall  file  with  the  Interstate  Commerce  Commission 
copies  of  the  joint  tariffs  of  rates,  fares,  or  charges  on  which  such 
joint  interchangeable  mileage  tickets  are  to  be  based,  together  with 
specifications  of  the  amount  of  free  baggage  permitted  to  be  carried 
under  such  tickets,  in  the  same  manner  as  common  carriers  are  re- 
quired to  do  with  regard  to  other  joint  rates  by  section  six  of  this 
Act;  and  all  the  provisions  of  said  section  six  relating  to  joint  rates, 
fares,  and  charges  shall  be  observed  by  said  common  carriers  and  en- 
forced by  the  Interstate  Commerce  Commission  as  fully  with  regard 
to  such  joint  interchangeable  mileage  tickets  as  with  regard  to  other 


298  ACT  TO  REGULATE  COMMERCE 

joint  rates,  fares,  and  charges  referred  to  in  said  section  six.  It  shall 
be  unlawful  for  any  common  carrier  that  has  issued  or  authorized  to 
be  issued  any  such  joint  interchangeable  mileage  tickets  to  demand, 
collect,  or  receive  from  any  person  or  persons  a  greater  or  less  com- 
pensation for  transportation  of  persons  or  baggage  under  such  joint 
interchangeable  mileage  tickets  than  that  required  by  the  rate,  fare, 
or  charge  specified  in  the  copies  of  the  joint  tariff  of  rates,  fares,  or 
charges  filed  with  the  Commission  in  force  at  the  time.  The  provi- 
sions of  section  ten  of  this  Act  shall  apply  to  any  violation  of  the  re- 
quirements of  this  proviso. 

NEW  SECTION.  (Added  March  2,  1889.)  [Sec.  23.]  That  the  cir- 
cuit and  district  courts  of  the  United  States  shall  have  jurisdiction 
upon  the  relation  of  any  person  or  persons,  firm,  or  corporation,  al- 
leging such  violation  by  a  common  carrier,  of  any  of  the  provisions 
of  the  Act  to  which  this  is  a  supplement  and  all  Acts  amendatory 
thereof,  as  prevents  the  relator  from  having  interstate  traffic  moved 
by  said  common  carrier  at  the  same  rates  as  are  charged,  or  upon 
terms  or  conditions  as  favorable  as  those  given  by  said  common  car- 
rier for  like  traffic  under  similar  conditions  to  any  other  shipper,  to 
issue  a  writ  or  writs  of  mandamus  against  said  common  carrier,  com- 
manding such  common  carrier  to  move  and  transport  the  traffic,  or  to 
furnish  cars  or  other  facilities  for  transportation  for  the  party  apply- 
ing for  the  writ:  Provided,  That  if  any  question  of  fact  as  to  the 
proper  compensation  to  the  common  carrier  for  the  service  to  be  en- 
forced by  the  writ  is  raised  by  the  pleadings,  the  writ  of  peremptory 
mandamus  may  issue,  notwithstanding  such  question  of  fact  is  unde- 
termined, upon  such  terms  as  to  security,  payment  of  money  into  the 
court,  or  otherwise,  as  the  court  may  think  proper,  pending  the  de- 
termination of  the  question  of  fact:  Provided,  That  the  remedy 
hereby  given  by  writ  of  mandamus  shall  be  cumulative,  and  shall  not 
be  held  to  exclude  or  interfere  with  other  remedies  provided  by  this 
Act  or  the  Act  to  which  it  is  a  supplement. 

SEC.  24.  (Added  June  29,  1906.)  That  the  Interstate  Commerce 
Commission  is  hereby  enlarged  so  as  to  consist  of  seven  members  with 
terms  of  seven  years,  and  each  shall  receive  ten  thousand  dollars 
compensation  annually.  The  qualifications  of  the  Commissioners  and 
the  manner  of  the  payment  of  their  salaries  shall  be  as  already  pro- 
vided by  law.  Such  enlargement  of  the  Commission  shall  be  accom- 
plished through  appointment  by  the  President,  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  of  two  additional  Interstate  Com- 
merce Commissioners,  one  for  a  term  expiring  December  thirty-first, 
nineteen  hundred  and  eleven,  one  for  a  term  expiring  December 
thirty-first,  nineteen  hundred  and  twelve.  The  terms  of  the  present 
Commissioners,  or  of  any  successor  appointed  to  fill  a  vacancy  caused 
by  the  death  or  resignation  of  any  of  the  present  Commissioners,  shall 
expire  as  heretofore  provided  by  law.  Their  successors  and  the  suc- 
cessors of  the  additional  Commissioners  herein  provided  for  shall  be 
appointed  for  the  full  term  of  seven  years,  except  that  any  person  ap- 
pointed to  fill  a  vacancy  shall  be  appointed  only  for  the  unexpired 
term  of  the  Commissioner  whom  he  shall  succeed.  Not  more  than  four 
Commissioners  shall  be  appointed  from  the  same  political  party. 

(Additional  provisions  in  Act  of  June  29,  1906.)  (SEC.  9.)  That 
all  existing  laws  relating  to  the  attendance  of  witnesses  and  the  pro- 


ACT  TO  REGULATE  COMMERCE  299 

duction  of  evidence  and  the  compelling  of  testimony  under  the  Act  to 
regulate  commerce  and  all  Acts  amendatory  thereof  shall  apply  to  any 
and  all  proceedings  and  hearings  under  this  Act. 

(SEC.  10.)  That  all  laws  and  parts  of  laws  in  conflict  with  the  pro- 
visions of  this  Act  are  hereby  repealed;  but  the  amendments  herein 
provided  for  shall  not  affect  causes  now  pending  in  courts  of  the 
United  States,  but  such  causes  shall  be  prosecuted  to  a  conclusion  in 
the  manner  heretofore  provided  by  law. 

(SEC.  11.)  That  this  Act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 


Joint  resolution  of  June  30,  1906,  provides:  "That  the  act  entitled 
'  An  act  to  amend  an  act,  entitled  ' '  An  act  to  regulate  commerce, ' '  ap- 
proved February  4,  1887,  and  all  acts  amendatory  thereof,  and  to  en- 
large the  powers  of  the  Interstate  Commerce  Commission,'  shall  take 
effect  and  be  in  force  sixty  days  after  its  approval  by  the  President  of 
the  United  States." 

Public  No.  41,  approved  February  4,  1887,  as  amended  by  Public 
No.  125,  approved  March  2,  1889,  and  Public  No.  72,  approved  Feb- 
ruary 10,  1891.  Public  No.  38,  approved  February  8,  1895.  Public 
No.  337,  approved  June  29, 1906.  Public  Res.,  No.  47,  approved  June 
30,  1906.  Public  No.  95,  approved  April  13,  1908. 


THE  IMMUNITY  ACT 


AN  ACT  In  relation  to  testimony  before  the  Interstate  Commerce  Commission, 
and  in  cases  or  proceedings  under  or  connected  with  an  act  entitled  "An  act 
to  regulate  commerce, ' '  approved  February  fourth,  eighteen  hundred  and  eighty- 
seven,  and  amendments  thereto. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  no  person  shall 
be  excused  from  attending  and  testifying  or  from  producing  books, 
papers,  tariffs,  contracts,  agreements  and  documents  before  the  Inter- 
state Commerce  Commission,  or  in  obedience  to  the  subpoena  of  the 
Commission,  whether  such  subpoena  be  signed  or  issued  by  one  or 
more  Commissioners,  or  in  any  cause  or  proceeding,  criminal  or  other- 
wise, based  upon  or  growing  out  of  any  alleged  violation  of  the  act  of 
Congress,  entitled  "An  act  to  regulate  commerce,"  approved  Febru- 
ary fourth,  eighteen  hundred  and  eighty-seven,  or  of  any  amendment 
thereof  on  the  ground  or  for  the  reason  that  the  testimony  or  evi- 
dence, documentary  or  otherwise,  required  of  him,  may  tend  to  crim- 
inate him  or  subject  him  to  a  penalty  or  forfeiture.  But  no  person 
shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeiture  for  or 
on  account  of  any  transaction,  matter  or  thing,  concerning  which  he 
may  testify,  or  produce  evidence,  documentary  or  otherwise,  before 
said  Commission,  or  in  obedience  to  its  subpoena,  or  the  subpoena  of 
either  of  them,  or  in  any  such  case  or  proceeding:  Provided,  That 
no  person  so  testifying  shall  be  exempt  from  prosecution  and  punish- 
ment for  perjury  committed  in  so  testifying. 

Any  person  who  shall  neglect  or  refuse  to  attend  and  testify,  or  to 
answer  any  lawful  inquiry,  or  to  produce  books,  papers,  tariffs,  con- 
tracts, agreements,  and  documents,  if  in  his  power  to  do  so,  in  obe- 
dience to  the  subpoena  or  lawful  requirement  of  the  Commission,  shall 
be  guilty  of  an  offense  and  upon  conviction  thereof  by  a  court  of 
competent  jurisdiction  shall  be  punished  by  fine  not  less  than  one 
hundred  dollars  nor  more  than  five  thousand  dollars,  or  by  imprison- 
ment for  not  more  than  one  year  or  by  both  such  fine  and  imprison- 
ment. 

Public  No  54,  approved  February  11,  1903. 


300 


ACT  DEFINING  RIGHT  OF  IMMUNITY 


AN  ACT  Defining  the  right  of  immunity  of  witnesses  under  the  act  entitled  "An 
act  in  relation  to  testimony  before  the  Interstate  Commerce  Commission,"  and 
so  forth,  approved  February  eleventh,  eighteen  hundred  and  ninety-three,  and 
an  act  entitled,  "An  act  to  establish  the  Department  of  Commerce  and  Labor," 
approved  February  fourteenth,  nineteen  hundred  and  three,  and  an  act  enti- 
tled "An  act  to  further  regulate  commerce  with  foreign  nations  and  among  the 
States,"  approved  February  nineteenth,  nineteen  hundred  and  three,  and  an 
act  entitled  "An  act  making  appropriations  for  the  legislative,  executive,  and 
judicial  expenses  of  the  Government  for  the  fiscal  year  ending  June  thirtieth, 
nineteen  hundred  and  four,  and  for  other  purposes,"  approved  February  twen- 
ty-fifth, nineteen  hundred  and  three. 

Be  it  enacted  ~by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  under  the  im- 
munity provisions  in  the  Act  entitled  ''An  Act  in  relation  to  testi- 
mony before  the  Interstate  Commerce  Commission,"  and  so  forth, 
approved  February  eleventh,  eighteen  hundred  and  ninety-three,  in 
section  six  of  the  Act  entitled  "An  Act  to  establish  the  Department 
of  Commerce  and  Labor,"  approved  February  fourteenth,  nineteen 
hundred  and  three,  and  in  the  Act  entitled  "An  Act  to  further  regu- 
late commerce  with  foreign  nations  and  among  the  States,"  approved 
February  nineteenth,  nineteen  hundred  and  three,  and  in  the  Act 
entitled  "An  Act  making  appropriations  for  the  legislative,  executive, 
and  judicial  expenses  of  the  Government  for  the  fiscal  year  ending 
June  thirtieth,  nineteen  hundred  and  four,  and  for  other  purposes," 
approved  February  twenty-fifth,  nineteen  hundred  and  three,  im- 
munity shall  extend  only  to  a  natural  person  who,  in  obedience  to  a 
subprena,  gives  testimony  under  oath  or  produces  evidence,  docu- 
mentary or  otherwise,  under  oath. 

Public  No.  389,  approved  June  30,  1906. 


301 


DIGEST  OF  ELKINS'  LAW 

[As  amended.] 


SECTION  1: 

Carrier  corporation  as  well  as  officer  or  agent  liable  to  convic- 
tion for  misdemeanor. 

Penalty. 

Failure  of  carrier  to  publish  rates  or  observe  tariffs  a  misde- 
meanor. 

Penalty,  fine. 

Misdemeanor  to  offer,  grant,  give,  solicit,  accept  or  receive  any 
rebate  from  published  rates  or  other  concessions  or  discrimina- 
tion. 

Penalty,  fine  or  imprisonment,  or  both. 

Judicial  district  in  which  cases  may  be  prosecuted. 

Act  of  officer  or  agent  to  be  also  deemed  act  of  carrier. 

Rates  filed  or  participated  in  by  carrier  shall,  as  against  such 
carrier,  be  deemed  legal  rate. 

Forfeiture,  in  addition  to  other  prescribed  penalty,  of  three  times 
amount  of  money  and  value  of  consideration  illegally  received 
shall  be  paid  to  the  United  States. 

Attorney-General  to  collect  such  for  forfeiture  by  civil  action. 

Period  covered  to  be  six  years  prior  to  commencement  of  action. 
SECTION  2: 

Persons  interested  in  matters  involved  in  cases  before  Interstate 
Commerce  Commission  or  circuit  court  may  be  made  parties 
and  shall  be  subject  to  orders  or  decrees. 
SECTION  3 : 

Proceedings  to  enjoin  or  restrain  departures  from  published  rates 
or  any  discrimination  prohibited  by  law  against  carriers  and 
parties  interested  in  traffic. 

Such  proceedings  shall  not  prevent  actions  for  recovery  of  dam- 
ages or  other  action  authorized  by  act  to  regulate  commerce 
or  amendments  thereof. 

Compulsory  attendance  and  testimony  of  witnesses  and  produc- 
tion of  books  and  papers. 

Immunity  to  witnesses. 

Expediting  act  of  February  11,  1903,  to  apply  in  cases  prosecuted 
under  direction  of  Attorney-General  in  name  of  Interstate  Com- 
merce Commission. 
SECTION  4: 

Conflicting  laws  repealed. 

302 


THE  ELKINS'  LAW 

[As  amended.] 


AN  ACT  To  further  regulate  commerce  with  foreign  nations  and  among  the  States. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  SEC.  1.  (As  amended 
June  29,  1906.)  That  anything  done  or  omitted  to  be  done  by  a  cor- 
poration common  carrier,  subject  to  the  act  to  regulate  commerce 
and  the  acts  amendatory  thereof,  which,  if  done  or  omitted  to  be  done 
by  any  director  or  officer  thereof,  or  any  receiver,  trustee,  lessee, 
agent,  or  person  acting  for  or  employed  by  such  corporation,  would 
constitute  a  misdemeanor  under  said  acts  or  under  this  act,  shall  also 
be  held  to  be  a  misdemeanor  committed  by  such  corporation,  and  upon 
conviction  thereof  it  shall  be  subject  to  like  penalties  as  are  prescribed 
in  said  acts  or  by  this  act  with  reference  to  such  persons,  except  as 
such  penalties  are  herein  changed.  The  willful  failure  upon  the 
part  of  any  carrier  subject  to  said  acts  to  file  and  publish  the  tariffs 
or  rates  and  charges  as  required  by  said  acts,  or  strictly  to  observe 
such  tariffs  until  changed  according  to  law,  shall  be  a  misdemeanor, 
and  upon  conviction  thereof  the  corporation  offending  shall  be  subject 
to  a  fine  of  not  less  than  one  thousand  dollars  nor  more  than  twenty 
thousand  dollars  for  each  offense ;  and  it  shall  be  unlawful  for  any 
person,  persons,  or  corporation  to  offer,  grant,  or  give,  or  to  solicit, 
accept  or  receive  any  rebate,  concession,  or  discrimination  in  respect 
to  the  transportation  of  any  property  in  interstate  or  foreign  com- 
merce by  any  common  carrier  subject  to  said  act  to  regulate  com- 
merce and  the  acts  amendatory  thereof  whereby  any  such  property 
shall  by  any  device  whatever  be  transported  at  a  less  rate  than  that 
named  in  the  tariffs  published  and  filed  by  such  carrier,  as  is  required 
by  said  act  to  regulate  commerce  and  the  acts  amendatory  thereof, 
or  whereby  any  other  advantage  is  given  or  discrimination  is  prac- 
ticed. Every  person  or  corporation,  whether  carrier  or  shipper,  who 
shall,  knowingly,  offer,  grant,  or  give,  or  solicit,  accept,  or  receive  any 
such  rebates,  concession,  or  discrimination  shall  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  thereof  shall  be  punished  by  a  fine 
of  not  less  than  one  thousand  dollars  nor  more  than  twenty  thousand 
dollars :  Provided,  That  any  person,  or  any  officer  or  director  of  any 
corporation  subject  to  the  provisions  of  this  act,  or  the  act  to  regu- 
late commerce  and  the  acts  amendatory  thereof,  or  any  receiver,  trus- 
tee, lessee,  agent,  or  person  acting  for  or  employed  by  any  such  cor- 
poration, who  shall  be  convicted  as  aforesaid,  shall,  in  addition  to  the 
fine  herein  provided  for,  be  liable  to  imprisonment  in  the  penitentiary 
for  a  term  of  not  exceeding  two  years,  or  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court.  Every  violation  of  this  section 
shall  be  prosecuted  in  any  court  of  the  United  States  having  jurisdic- 
tion of  crimes  within  the  district  in  which  such  violation  was  com- 
mitted, or  through  which  the  transportation  may  have  been  conduct- 

303 


304  ELKINS'  LAW 

ed;  and  whenever  the  offense  is  begun  in  one  jurisdiction  and  com- 
pleted in  another  it  may  be  dealt  with,  inquired  of,  tried,  determined, 
and  punished  in  either  jurisdiction  in  the  same  manner  as  if  the  of- 
fense had  been  actually  and  wholly  committed  therein. 

In  construing  and  enforcing  the  provisions  of  this  section,  the  act, 
omission,  or  failure  of  any  officer,  agent,  or  other  person  acting  for 
or  employed  by  any  common  carrier,  or  shipper,  acting  within  the 
scope  of  his  employment,  shall  in  every  case  be  also  deemed  to  be  the 
act,  omission,  or  failure  of  such  carrier  or  shipper  as  well  as  that 
of  the  person.  Whenever  any  carrier  files  with  the  Interstate  Com- 
merce Commission  or  publishes  a  particular  rate  under  the  provisions 
of  the  act  to  regulate  commerce  or  acts  amendatory  thereof,  or  parti- 
cipates in  any  rates  so  filed  or  published,  that  rate  as  against  such 
carrier,  its  officers  or  agents,  in  any  prosecution  begun  under  this 
act  shall  be  conclusively  deemed  to  be  the  legal  rate,  and  any  de- 
parture from  such  rate,  or  any  offer  to  depart  therefrom,  shall  be 
deemed  to  be  an  offense  under  this  section  of  this  act. 

Any  person,  corporation,  or  company  who  shall  deliver  property 
for  interstate  transportation  to  any  common  carrier,  subject  to  the 
provisions  of  this  act,  or  for  whom,  as  consignor  or  consignee,  any 
such  carrier  shall  transport  property  from  one  State,  Territory,  or 
the  District  of  Columbia  to  any  other  State,  Territory,  or  the  Dis- 
trict of  Columbia,  or  foreign  country,  who  shall  knowingly  by  em- 
ployee, agent,  officer,  or  otherwise,  directly  or  indirectly,  by  or  through 
any  means  or  device  whatsoever,  receive  or  accept  from  such  common 
carrier  any  sum  of  money  or  any  other  valuable  consideration  as  a 
rebate  or  offset  against  the  regular  charges  for  transportation  of  such 
property,  as  fixed  by  the  schedules  of  rates  provided  for  in  this  act, 
shall  in  addition  to  any  penalty  provided  by  this  act  forfeit  to  the 
United  States  a  sum  of  money  three  times  the  amount  of  money  so 
received  or  accepted  and  three  times  the  value  of  any  other  consid- 
eration so  received  or  accepted,  to  be  ascertained  by  the  trial  court; 
and  the  Attorney-General  of  the  United  States  is  authorized  and  di- 
rected, whenever  he  has  reasonable  grounds  to  believe  that  any  such 
person,  corporation,  or  company  has  knowingly  received  or  accepted 
from  any  such  common  carrier  any  sum  of  money  or  other  valuable 
consideration  as  a  rebate  or  offset  as  aforesaid,  to  institute  in  any 
court  of  the  United  States  of  competent  jurisdiction  a  civil  action  to 
collect  the  said  sum  or  sums  so  forfeited  as  aforesaid;  and  in  the 
trial  of  said  action  all  such  rebates  or  other  considerations  so  re- 
ceived or  accepted  for  a  period  of  six  years  prior  to  the  commence- 
ment of  the  action  may  be  included  therein,  and  the  amount  recov- 
ered shall  be  three  times  the  total  amount  of  money,  or  three  times 
the  total  value  of  such  consideration,  so  received  or  accepted,  or  both, 
as  the  case  may  be. 

SEC.  2.  That  in  any  proceeding  for  the  enforcement  of  the  provi- 
sions of  the  statutes  relating  to  interstate  commerce,  whether  such 
proceedings  be  instituted  before  the  Interstate  Commerce  Commission 
or  be  begun  originally  in  any  circuit  court  of  the  United  States,  it 
shall  be  lawful  to  include  as  parties,  in  addition  to  the  carrier,  all  per- 
sons interested  in  or  affected  by  the  rate,  regulation,  or  practice  under 
consideration,  and  inquiries,  investigations,  orders,  and  decrees  may 
be  made  with  reference  to  and  against  such  additional  parties  in  the 


ELKINS'  LAW  305 

same  manner,  to  the  same  extent,  and  subject  to  the  same  provisions 
as  are  or  shall  be  authorized  by  law  with  respect  to  carriers. 

SEC.  3.  That  whenever  the  Interstate  Commerce  Commission  shall 
have  reasonable  ground  for  belief  that  any  common  carrier  is  engaged 
in  the  carriage  of  passengers  or  freight  traffic  between  given  points 
at  less  than  the  published  rates  on  file,  or  is  committing  any  discrim- 
inations forbidden  by  law,  a  petition  may  be  presented  alleging  such 
facts  to  the  circuit  court  of  the  United  States  sitting  in  equity  having 
jurisdiction ;  and  when  the  act  complained  of  is  alleged  to  have  been 
committed  or  as  being  committed  in  part  in  more  than  one  judicial 
district  or  State,  it  may  be  dealt  with,  inquired  of,  tried,  and  deter- 
mined in  either  such  judicial  district  or  State,  whereupon  it  shall  be 
the  duty  of  the  court  summarily  to  inquire  into  the  circumstances, 
upon  such  notice  and  in  such  manner  as  the  court  shall  direct  and 
without  the  formal  pleadings  and  proceedings  applicable  to  ordinary 
suits  in  equity,  and  to  make  such  other  persons  or  corporations  parties 
thereto  as  the  court  may  deem  necessary,  and  upon  being  satisfied  of 
the  truth  of  the  allegations  of  said  petition  said  court  shall  enforce  an 
observance  of  the  published  tariffs  or  direct  and  require  a  discontinu- 
ance of  such  discrimination  by  proper  orders,  writs,  and  process,  which 
said  orders,  writs,  and  process  may  be  enforceable  as  well  against  the 
parties  interested  in  the  traffic  as  against  the  carrier,  subject  to  the 
right  of  appeal  as  now  provided  by  law.  It  shall  be  the  duty  of  the 
several  district  attorneys  of  the  United  States,  whenever  the  Attorney- 
General  shall  direct,  either  of  his  own  motion  or  upon  the  request  of 
the  Interstate  Commerce  Commission,  to  institute  and  prosecute  such 
proceedings,  and  the  proceedings  provided  for  by  this  act  shall  not 
preclude  the  bringing  of  suit  for  the  recovery  of  damages  by  any 
party  injured,  or  any  other  action  provided  by  said  act  approved 
February  fourth,  eighteen  hundred  and  eighty-seven,  entitled  An 
act  to  regulate  commerce  and  the  acts  amendatory  thereof.  And  in 
proceedings  under  this  act  and  the  acts  to  regulate  commerce  the  said 
courts  shall  have  the  power  to  compel  the  attendance  of  witnesses,  both 
upon  the  part  of  the  carrier  and  the  shipper,  who  shall  be  required 
to  answer  on  all  subjects  relating  directly  or  indirectly  to  the  matter 
in  controversy,  and  to  compel  the  production  of  all  books  and  papers, 
both  of  the  carrier  and  the  shipper,  which  relate  directly  or  indirectly 
to  such  transaction;  the  claim  that  such  testimony  or  evidence  may 
tend  to  criminate  the  person  giving  such  evidence  shall  not  excuse  such 
person  from  testifying  or  such  corporation  producing  its  books  and 
papers,  but  no  person  shall  be  prosecuted  or  subjected  to  any  penalty 
or  forfeiture  for  or  on  account  of  any  transaction,  matter,  or  thing  con- 
cerning which  he  may  testify  or  produce  evidence,  documentary  or 
otherwise,  in  such  proceeding:  Provided,  That  the  provisions  of  an 
act  entitled  "An  act  to  expedite  the  hearing  and  determination  of 
suits  in  equity  pending  or  hereafter  brought  under  the  act  of  July 
second,  eighteen  hundred  and  ninety,  entitled  'An  act  to  protect  trade 
and  commerce  against  unlawful  restraints  and  monopolies,'  'An  act 
to  regulate  commerce,'  approved  February  fourth,  eighteen  hundred 
and  eighty-seven,  or  any  other  acts  having  a  like  purpose  that  may  be 
hereafter  enacted,  approved  February  eleventh,  nineteen  hundred  and 
three,"  shall  apply  to  any  case  prosecuted  under  the  direction  of  the 


306  ELKINS'  LAW 

Attorney-General  in  the  name  of  the  Interstate  Commerce  Commis- 
sion. 

SEC.  4.  That  all  acts  and  parts  of  acts  in  conflict  with  the  provi- 
sions of  this  act  are  hereby  repealed,  but  such  repeal  shall  not  affect 
causes  now  pending,  nor  rights  which  have  already  accrued,  but  such 
causes  shall  be  prosecuted  to  a  conclusion  and  such  rights  enforced  in 
a  manner  heretofore  provided  by  law  and  as  modified  by  the  provi- 
sions of  this  act. 

SEC.  5.  That  this  act  shall  take  effect  from  its  passage. 

Public  No.  103,  approved  February  19,  1903. 


EXPEDITING  ACT 


AN  ACT  1  To  expedite  the  hearing  and  determination  of  suits  in  equity  pending 
or  hereafter  brought  under  the  act  of  July  second,  eighteen  hundred  and 
ninety,  entitled  "An  act  to  protect  trade  and  commerce  against  unlawful  re- 
straints and  monopolies,"  "An  act  to  regulate  commerce,"  approved  February 
fourth,  eighteen  hundred  and  eighty-seven,  or  any  other  acts  having  a  like 
purpose  that  may  be  hereafter  enacted. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  in  any  suit  in 
equity  pending  or  hereafter  brought  in  any  circuit  court  of  the  United 
States  under  the  act  entitled  "An  act  to  protect  trade  and  commerce 
against  unlawful  restraints  and  monopolies,"  approved  July  sec- 
ond, eighteen  hundred  and  ninety,  "An  act  to  regulate  commerce," 
approved  February  fourth,  eighteen  hundred  and  eighty-seven,  or 
any  other  acts  having  a  like  purpose  that  hereafter  may  be  enacted, 
wherein  the  United  States  is  complainant,  the  Attorney-General  may 
file  with  the  clerk  of  such  court  a  certificate  that,  in  his  opinion,  the 
case  is  of  general  public  importance,  a  copy  of  which  shall  be  imme- 
diately furnished  by  such  clerk  to  each  of  the  circuit  judges  of  the 
circuit  in  which  the  case  is  pending.  Thereupon  such  case  shall  be 
given  precedence  over  others  and  in  every  way  expedited,  and  be 
assigned  for  hearing  at  the  earliest  practicable  day,  before  not  less 
than  three  of  the  circuit  judges  of  said  circuit,  if  there  be  three  or 
more;  and  if  there  be  not  more  than  two  circuit  judges,  then  before 
them  and  such  district  judge  as  they  may  select.  In  the  event  the 
judges  sitting  in  such  case  shall  be  divided  in  opinion,  the  case  shall 
be  certified  to  the  Supreme  Court  for  review  in  like  manner  as  if 
taken  there  by  appeal  as  hereinafter  provided. 

SEC.  2.  That  in  every  suit  in  equity  pending  or  hereafter  brought 
in  any  circuit  court  of  the  United  States  under  any  of  said  acts, 
wherein  the  United  States  is  complainant,  including  cases  submitted 
but  not  yet  decided,  an  appeal  from  the  final  decree  of  the  circuit 
court  will  lie  only  to  the  Supreme  Court  and  must  be  taken  within 
sixty  days  from  the  entry  thereof :  Provided,  That  in  any  case  where 
an  appeal  may  have  been  taken  from  the  final  decree  of  a  circuit  court 
to  the  circuit  court  of  appeals  before  this  act  takes  effect,  the  case 
shall  proceed  to  a  final  decree  therein,  and  an  appeal  may  be  taken 
from  such  decree  to  the  Supreme  Court  in  the  manner  now  provided 
by  law. 

Public  No.  82,  approved  February  11,  1903. 

1  This  act  is  made  applicable  to  suits  brought  to  enjoin  the  operation  of  an 
order  of  the  Commission.  (See  act  to  regulate  commerce,  sec.  16.) 


STREET  RAILWAYS  IN  THE  DISTRICT  OF  COLUMBIA 


[Part  of  an  act  conferring  certain  powers  on  the  Interstate  Commerce  Commission 
over  the  street  railways  operating  in  the  District  of  Columbia.] 

AN  ACT  Authorizing  certain  extensions  to  be  made  of  the  lines  of  the  Anacostia 
and  Potomac  Eiver  Bailroad  Company,  the  Washington  Railway  and  Electric 
Company,  the  City  and  Suburban  Eailway  of  Washington,  and  the  Capital 
Traction  Company,  in  the  District  of  Columbia,  and  for  other  purposes. 


SEC.  16.  That  every  street  railroad  company  or  corporation  owning, 
controlling,  leasing  or  operating  one  or  more  street  railroads  within 
the  District  of  Columbia  shall  on  each  and  all  of  its  railroads  supply 
and  operate  a  sufficient  number  of  cars,  clean,  sanitary,  in  good  re- 
pair, with  proper  and  safe  power,  equipment,  appliances  and  service, 
comfortable  and  convenient,  and  so  operate  the  same  as  to  give  expe- 
ditious passage,  not  to  exceed  fifteen  miles  per  hour  within  the  city 
limits  or  twenty  miles  per  hour  in  the  suburbs,  to  all  persons  desirous 
of  the  use  of  said  cars,  without  crowding  said  cars.  The  Interstate 
Commerce  Commission  is  hereby  given  power  to  require  and  compel 
obedience  to  all  of  the  provisions  of  this  section,  and  to  make,  alter, 
amend  and  enforce  all  needful  rules  and  regulations  to  secure  said 
obedience ;  and  said  Commission  is  given  power  to  make  all  such  orders 
and  regulations  necessary  to  the  exercise  of  the  powers  herein  granted 
to  it  as  may  be  reasonable  and  proper;  and  such  railroad  companies 
or  corporations,  their  officers  and  employees,  are  hereby  required  to 
obey  all  the  provisions  of  this  section,  and  such  regulations  and  orders 
as  may  be  made  by  said  Commission.  Any  such  company  or  corpora- 
tion, or  its  officers  or  employees,  violating  any  provision  of  this  sec- 
tion, or  any  of  the  said  orders  or  regulations  made  by  said  Commis- 
sion, or  permitting  such  violation,  shall  be  punished  by  a  fine  of  not 
more  than  one  thousand  dollars.  And  each  day  of  failure  or  neglect 
on  the  part  of  such  company  or  corporation,  its  officers  or  employees, 
to  obey  each  and  all  of  the  provisions  and  requirements  of  this  sec- 
tion, or  the  orders  and  regulations  of  the  Commission  made  there- 
under, shall  be  regarded  as  a  separate  offense. 

SEC.  17.  That  prosecutions  for  violations  of  any  of  the  provisions 
of  this  Act  shall  be  on  information  of  the  Interstate  Commerce  Com- 
mission filed  in  the  police  court  by  or  on  behalf  of  the  Commission. 

Public  No.  134,  approved  May  23,  1908. 


308 


EXCERPTS  FROM  ADMINISTRATIVE  RULINGS  AND  OPINIONS  * 


[For  list  of  subjects  covered  by  administrative  rulings  see  section  66,  ante; 
only  such  excerpts  are  here  inserted  as  have  a  bearing  on  the  jurisdiction  of  the 
Commission,  or  relate  to  procedure  before  it.] 

******* 

56.  Reduction  of  joint  rate  or  fare  to  equal  sum  of  locals. — *  *  * 
Many  informal  complaints  are  received  in  connection  with  regularly 
established  through  rates  or  fares  which  are  in  excess  of  the  sum  of 
the  locals  between  the  same  points.  The  Commission  has  no  authority 
to  change  or  fix  a  rate  or  fare  except  after  full  hearing  upon  formal 
complaint.  It  is  believed  to  be  proper  for  the  Commission  to  say  that 
if  called  upon  to  formally  pass  upon  a  case  of  this  nature  it  would 
be  its  policy  to  consider  the  through  rate  or  fare  which  is  higher  than 
the  sum  of  the  locals  between  the  same  points  as  prima  facie  unreason- 
able and  that  the  burden  of  proof  would  be  upon  the  carrier  to  defend 
such  higher  through  rate  or  fare. 
******* 

70.  Routing  and  misrouting  freight  (issued  March  18,  1907). — Al- 
leged neglects  or  errors  on  part  of  agents  of  carriers  in  misrouting 
shipments  lead  to  numerous  claims  of  overcharge,  many  of  which  are 
meritorious.  The  lawful  charge  on  any  shipment  is  the  tariff  rate 
via  the  route  over  which  the  shipment  moves.  No  carrier  can  law- 
fully refund  any  part  of  the  lawful  charge  except  under  authority  so 
to  do  from  the  Commission  or  from  a  court  of  competent  jurisdiction. 
That  thorough  understanding  and  uniform  practice  may  be  had  in 
this  connection,  the  Commission  issues  the  following  administrative 
ruling : 

In  order  to  secure  desired  delivery  to  industries,  plants,  or  ware- 
houses and  avoid  unnecessary  terminal  or  switching  charges,  the 
shipper  may  direct  as  to  terminal  routing  or  delivery  of  shipments 
which  are  to  go  beyond  the  lines  of  the  initial  carrier;  and  his  in- 
structions as  to  such  terminal  delivery  must  be  observed  in  routing 
and  billing  such  shipments.  The  carriers  may  not  disregard  the  in- 
structions of  shippers  as  to  intermediate  routing,  except  when  tariff 
of  initial  line  reserves  the  right  to  carrier  to  dictate  intermediate 
routing.  When  such  reservation  is  made  in  tariff,  (1)  where  all-rail 
rates  and  rail-and-water  rates  are  available  the  agent  of  carrier  must 
have  the  shipper  designate  which  of  the  two  he  wishes  to  use;  and 
(2)  the  agent  must  not  route  shipment  via  a  route  that  will  be  more 
expensive  to  the  shipper  than  the  one  desired  by  him,  or  that  does  not 
furnish  substantially  as  good  and  expeditious  service.  If  carrier  is 
not  willing  to  observe  the  intermediate  routing  instructions  of  shipper 
it  must  not  execute  bill  of  lading  containing  such  routing.  Carriers 
will  be  held  responsible  for  routing  shown  in  bill  of  lading. 

1  See  section  55. 

309 


310  ADMINISTRATIVE  RULINGS  AND  OPINIONS 

In  the  absence  of  specific  through  routing  by  shipper,  which  carrier 
is  willing  to  observe,  it  is  the  duty  of  the  agent  of  the  carrier  to  route 
shipment  via  the  cheapest  reasonable  route  known  to  him  of  the 
class  designated  by  the  shipper — that  is,  all-rail  or  rail-and-water — 
and  via  which  he  has  rates  which  he  can  lawfully  use.  If  a  foreign 
car  is  available  which  under  rules  as  to  car  service  must  be  sent  via 
a  particular  line  or  route  over  which  a  higher  rate  obtains,  agent  must 
explain  to  shipper  that  fact  and  allow  shipper  to  elect  whether  he  will 
use  that  car  at  the  higher  rate  or  wait  for  another  car.  If  shipper 
elects  to  use  the  car  at  the  higher  rate,  agent  should  so  note  on  bill  of 
lading.  If  agent  is  in  doubt,  he  should  secure  information  from 
proper  officers  of  traffic  department.  It  is  important  that  agents  at 
initial  points  be  able  to,  and  that  they  do,  quote  correct  rates  and  give 
correct  routings. 

If  a  carrier's  agent  misroutes  a  shipment  and  thus  causes  extra 
expense  to  the  shipper  over  and  above  the  lawful  charges  via  another 
available  route  of  the  class  designated  by  shipper — that  is,  all-rail  or 
rail-and-water — over  which  such  agent  had  applicable  rates  which 
he  could  lawfully  use,  and  responsibility  for  agent 's  error  is  admitted 
by  the  carrier,  such  carrier  may,  as  to  shipments  moving  subsequent 
to  March  18,  1907,  adjust  the  overcharge  so  caused  by  refunding  to 
shipper  the  difference  between  the  lawful  charges  via  the  route  over 
which  shipment  moves  and  what  would  have  been  the  lawful  charges 
on  same  shipment  at  the  same  time  via  the  cheaper  available  route  of 
the  class  designated  which  could  have  been  lawfully  used.  Such 
refund  must  in  no  case  exceed  the  actual  difference  between  the  law- 
ful charges  via  the  different  routes  as  specified,  and  must  in  every  in- 
stance be  paid  in  full  by  the  carrier  whose  agent  caused  such  over- 
charge, and  must  not  be  shared  in  by  or  divided  with  any  other  car- 
rier, corporation,  firm,  or  person.  This  authority  is  limited  strictly 
to  the  cases  specified  and  to  the  circumstances  recited  and  does  not 
extend  or  apply  to  instances  in  which  soliciting  or  commercial  agents 
of  carriers  induce  shippers  to  route  shipments  over  a  particular  line 
via  which  a  higher  rate  obtains  than  is  effective  via  some  other  line. 

The  rule  is  intended  to  apply  to  cases  in  which  the  agents  who  bill 
or  actually  forward  or  divert  shipments  through  error  or  oversight 
send  the  shipments  via  routes  that  are  more  expensive  than  those  di- 
rected by  shippers  or  available  in  the  absence  of  routing  instructions 
by  shippers.  It  must  not  be  used  in  any  case  or  in  any  way  to  ' '  meet ' ' 
or  "protect"  a  rate  via  another  route  or  gateway  via  which  the  ad- 
justing carrier  has  not  in  its  tariffs  at  the  time  the  shipment  moves 
rates  which  are  available  and  lawfully  applicable  thereto,  nor  as  a 
means  or  device  by  which  to  evade  tariff  rates  or  to  meet  the  rate  of 
a  competing  line  or  route,  nor  to  relieve  shipper  from  responsibility 
for  his  own  routing  instructions. 

(Issued  November  15,  1907.)  The  prerequisites  to  any  refund 
under  this  rule  are  admission  by  carrier  of  responsibility  for  its 
agent's  error  in  misrouting  the  shipment,  and  such  carrier's  willing- 
ness to  bear  the  extra  expense  so  caused,  without  recourse  upon  any 
other  carrier  for  any  part  thereof.  If,  therefore,  the  error  is  dis- 
covered before  the  shipment  has  been  delivered  to  consignee  or  before 
charges  demanded  upon  same  have  been  paid,  the  carrier  acknowledg- 
ing responsibility  for  the  error  may  authorize  the  delivering  carrier 


ADMINISTRATIVE  RULINSS  AND  OPINIONS  311 

to  deliver  shipment  upon  payment  of  the  charges  that  would  have 
applied  but  for  the  misrouting  and  to  bill  upon  it  for  the  extra  charge ; 
or,  if  the  shipment  has  been  delivered  undercharged  before  the  error 
is  discovered,  the  carrier  that  acknowledges  responsibility  for  the  error 
may  pay  the  undercharge  to  the  carrier  that  delivered  the  shipment 
instead  of  requiring  it  to  collect  the  undercharge  from  shipper,  to  be 
refunded  to  shipper. 

Complete  distinction  must  be  observed  between  cases  to  which  this 
rule  applies  and  those  provided  for  under  Rule  74. 

Shippers  must  bear  in  mind  that  there  is  a  limit  beyond  which  an 
agent  of  a  carrier  could  not  reasonably  be  expected  to  know  as  to 
terminal  delivery  or  local  rates  at  distant  points  and  on  lines  of 
distant  roads  to  or  with  which  he  has  no  specific  joint  through  rates. 
Consignors  and  consignees  should  cooperate  with  agents  of  carriers 
in  avoiding  misunderstandings  and  errors  in  routing  and  must  expect 
to  bear  some  responsibility  in  connection  therewith. 
******* 

74.  Return  of  astray  shipments  (issued  May  6,  1907). — Instances 
occur  in  which,  through  error  or  oversight  on  the  part  of  some  agent 
or  employee,  a  shipment  is  billed  to  an  erroneous  destination  or  is 
unloaded  short  of  destination  or  is  carried  by.  The  Commission  is 
of  the  opinion  that  in  bona  fide  instances  of  this  kind  carriers  may 
return  such  astray  shipments  to  their  proper  destination  or  course 
without  the  assessment  of  additional  charges,  and  may  arrange  for 
such  movement  of  such  astray  shipments  for  each  other  on  mutually 
acceptable  terms  without  the  necessity  of  publishing,  posting,  and 
filing  tariff  under  which  it  will  be  done. 

Complete  distinction  must  be  observed  between  cases  to  which  this 
rule  applies  and  those  provided  for  under  Rule  70. 
******* 

81.  Special  reparation  on  informal  complaints*  (issued  June  7, 
1907). — To  assist  in  the  settlement  of  certain  claims  of  shippers 
against  carriers,  and  as  a  practical  means  of  disposing  with  prompt- 
ness of  informal  complaints  that  might  otherwise  develop  into  formal 
complaints,  and  in  connection  with  which  the  unreasonableness  of 
the  rate  or  regulation  is  admitted  by  the  interested  carrier  or  car- 
riers, the  Commission  on  full  information  will  authorize  adjustment 
by  special  order  if  all  of  the  facts  and  conditions  warrant  such  action. 
The  connections  in  which  the  Commission  has  authority  to  modify  the 
provisions  of  the  law  are  specified  in  the  Act.  The  Commission  will 
not  assume  to  modify  it  in  any  other  connections  or  features. 

The  instances  in  which  the  Commission  will  authorize  refund  or 
reparation  on  informal  complaint  and  in  an  informal  way  will  be 
confined  to  those  in  which  the  informal  showing  develops  plainly  a 
case  in  which  the  Commission  would  award  reparation  on  formal 
hearing  and  in  which  an  adjustment  agreeable  to  complainant  and 
carrier  or  carriers  and  in  conformity  with  the  provisions  of  the  law 
is  reached. 

Reparation  involving  refund  of  alleged  overcharges  in  instances  in 
which  the  lawful  tariff  rates  have  been  applied  will  be  authorized 
under  informal  proceedings,  only  when  the  carrier  admits  the  unrea- 

1For  form  prescribed  for  special  reparation  cases  see  Form  No  Ha. 


312  ADMINISTRATIVE  RULINGS  AND  OPINIONS 

sonableness  of  the  rate  charged  and  it  is  shown  that  within  a  reason- 
able time,  not  exceeding  six  months,  after  the  shipment  moved  it  has 
incorporated  in  its  own  tariffs,  or  in  tariffs  in  which  it  has  concurred, 
the  rate  upon  basis  of  which  adjustment  is  sought,  and  has  thus 
made  that  rate  lawfully  applicable  via  the  route  over  which  ship- 
ment in  question  moved.  Adjustment  of  a  claim  of  this  character 
that  is  filed  with  the  Commission  within  six  months  after  the  shipment 
moved  may,  however,  be  authorized  even  if  more  than  six  months  have 
elapsed  between  the  movement  of  the  shipment  and  the  effective  date 
of  tariff  rate  or  regulation  that  forms  the  basis  of  such  adjustment. 
Authority  for  refund  on  account  of  a  reduced  rate  or  changed  tariff 
regulation  will  also  contain  Commission's  order  requiring  the  mainte- 
nance of  such  rate  or  regulation  for  at  least  one  year. 

No  carrier  may  pay  any  refund  from  its  published  tariff  charges 
save  with  the  specific  authority  of  the  Commission  in  accordance  with 
the  provisions  of  the  Act.  When  an  informal  or  formal  reparation 
order  has  been  made  by  the  Commission  the  principle  upon  which  it 
is  based  shall  be  extended  to  all  like  shipments,  but  no  refunds  shall 
be  made  upon  such  like  shipments  except  upon  specific  authority  from 
the  Commission  therefor. 

The  shipper  should  pay  the  lawfully  published  charges  applicable 
via  the  route  over  which  the  shipment  moves,  and  make  claim  for 
refund  if  he  believes  he  has  been  overcharged.  The  Commission  will 
not  ordinarily  include  in  reparation  award  demurrage  charges  which 
accrue  pending  adjustment  or  subsequent  to  consignee's  refusal  to 
accept  the  shipment  and  pay  the  lawful  charges  thereon,  but  in  special 
cases  such  demurrage  charges  may  be  included  in  the  amount  of 
refund. 

It  is  the  duty  of  the  delivering  carrier  to  collect,  and  of  the  con- 
signee to  pay,  demurrage  charges  as  per  lawful  tariffs.  Demurrage 
charges  accruing  because  of  error  of  a  carrier  are  considered  in  the 
same  light  as  are  other  additional  transportation  charges  caused  by 
carrier's  error;  and  if  adjusted,  the  full  expense  thereof  must  be 
borne  by  the  carrier  whose  agent  is  responsible  for  the  error.  (See 
Rule  70.) 

The  Commission  has  repeatedly  announced  the  view  that  the  law 
does  not  permit  the  use  of  any  rate  or  fare  except  that  contained  in  a 
lawful  tariff  that  is  applicable  via  the  line,  route,  and  gateway  over 
and  through  which  the  shipment  or  passenger  moves.  The  lawful 
rate  or  fare  for  through  movement  is  the  through  rate  or  fare,  wher- 
ever such  through  rate  or  fare  exists,  even  though  some  combination 
makes  a  lower  rate  or  fare  and  even  though  the  practice  in  the  past 
has  been  to  give  to  some  the  benefit  of  such  lower  combination.  The 
Commission  long  since  extended  to  carriers,  in  a  general  order,  per- 
mission to  reduce,  on  one  day's  notice,  a  joint  commodity  or  class 
rate  or  fare  that  is  higher  than  the  sum  of  the  locals  between  the 
same  points  to  make  it  equal  the  sum  of  such  locals.  If,  therefore, 
carriers  have  maintained  through  rates  or  fares  that  are  higher  than 
the  sums  of  the  locals  between  the  same  points,  it  is  because  of  their 
desire  so  to  do,  and  not,  as  some  agents  of  carriers  have  informed 
shippers,  because  the  law  or  the  Commission  forces  them  to  do  so. 
(See  Rule  56.) 

If  a  carrier  desires  to  give  its  patrons  the  benefit  of  the  same  rate 


ADMINISTRATIVE  RULINGS  AND  OPINIONS  313 

or  fare  that  applies  via  another  line  or  gateway,  and  which  is  lower 
than  its  own  rate  or  fare,  it  can  do  so  by  lawfully  incorporating  that 
rate  or  fare  in  its  own  tariffs,  and  so  give  the  benefit  of  it  to  all  of  its 
patrons  alike.  The  law  forbids  giving  such  lower  rate  or  fare  to  one 
and  withholding  it  from  another,  but  neither  the  law  nor  the  Com- 
mission stands  in  the  way  of  adoption  in  lawful  manner  of  the  lower 
rate  or  fare  as  available  for  all. 

The  Commission's  power  to  authorize  adjustments  will  not  be  ex- 
ercised in  such  way  as  to  create  the  very  discriminations  which  the 
law  aims  to  prevent.  No  doubt  instances  will  occur  in  which  seem- 
ing hardship  will  come  to  some.  Much  of  such  embarrassment  will  be 
avoided  if  agents  of  carriers  and  shippers  take  pains  to  be  certain 
that  correct  rates  are  quoted  and  correct  routing  is  given. 

Claims  filed  since  August  28,  1907,  must  have  accrued  within  two 
years  immediately  prior  to  the  date  upon  which  they  are  filed ;  other- 
wise they  are  barred  by  the  statute.  Claims  filed  with  the  Commission 
on  or  before  August  28,  1907,  are  not  affected  by  the  two  years  limita- 
tion in  the  act.  The  Commission  will  not  take  jurisdiction  of  or  recog- 
nize its  jurisdiction  over  any  claim  for  reparation  or  damages  which 
is  barred  by  the  statute  of  limitation,  as  herein  interpreted,  and  the 
Commission  will  not  recognize  the  right  of  a  carrier  to  waive  the  limi- 
tation provisions  of  the  statute. 


86.  Ocean  carriers — export  and  import  tariffs. — Ocean  carriers  be- 
tween ports  of  the  United  States  and  foreign  countries  not  adjacent 
are  not  subject  to  the  terms  of  the  act  to  regulate  commerce;  nor  to 
the  jurisdiction  of  the  Commission. 

The  inland  carriers  of  traffic  exported  to  or  imported  from  a  foreign 
country  not  adjacent,  must  /publish  their  rates  and  fares  to  the  ports 
and  from  the  ports,  and  such  rates  or  fares  must  be  the  same  for  all 
regardless  of  what  ocean  carrier  may  be  designated  by  the  shipper  or 
passenger. 

As  a  matter  of  convenience  to  the  public  they  may  publish  in  their 
tariffs  such  through  export  or  import  rates  or  fares  to  or  from  foreign 
points  as  they  may  make  in  connection  with  ocean  carriers.  Such 
tariffs  must,  however,  distinctly  state  the  inland  rate  or  fare  as  above 
provided ;  and  need  not  be  concurred  in  by  the  ocean  carrier,  because, 
concurrence  can  be  required  from,  and  is  effective  against,  only  car' 
riers  subject  to  the  act. 

Whichever  plan  of  publishing  these  rates  and  fares  is  followed  the 
tariffs  must  be  filed  and  posted,  and  may  be  changed  only  upon  statu- 
tory notice  or  under  special  permission  for  shorter  time. 

Export  and  import  traffic  may  be  forwarded  under  through  billing 
but  such  through  billing  must  clearly  separate  the  liability  of  the  in- 
land carrier  or  carriers  and  of  the  ocean  carrier,  and  must  show  the 
tariff  rate  of  the  inland  carrier  or  carriers. 
******* 

Boats  that  are  not  common  carriers.  (Issued  April  14,  1908. — 
Certain  carriers  have  been  in  the  habit  of  advancing  the  charges  of 
sailing  vessels,  boats  and  barges  bringing  vegetables  to  their  terminals 
to  be  forwarded  to  interstate  destinations,  and  of  entering  the  amount 
on  way  bills  as  charges  in  addition  to  their  tariff  rates.  Upon  inquiry 


314  ADMINISTRATIVE  RULIN8S  AND  OPINIONS 

whether  the  carriers  may  lawfully  continue  this  practice  it  was  held 
that  if  the  boats  are  common  carriers,  making  regular  trips  and  of- 
fering their  services  to  the  general  public,  they  must  file  tariffs  and 
the  practice  must  be  discontinued  until  they  do  so. 

******* 

Joint  rates  between  a  water  and  a  rail  carrier  subjects  the  former  to 
the  provisions  of  the  act.  (Issued  May  4,  1908. — A  steamboat  line 
agreed  upon  joint  rates  with  a  rail  line  for  certain  passenger  and 
freight  traffic.  Held,  That  it  could  not  unite  with  a  railroad  com- 
pany in  making  a  through  route  and  joint  rate  on  a  particular  traf- 
fic without  subjecting  all  its  interstate  traffic  to  the  provisions  of  the 
law  and  to  the  jurisdiction  of  the  Commission. 


FOKMS  FOR  USE  BEFORE  THE  COMMISSION 


[These  forms  may  be  used  in  cases  to  which  they  are  applicable,  with  such 
alterations  as  the  circumstances  may  render  necessary.  Those  followed  by  an 
asterisk  (*)  are  recommended  by  the  Commission;  the  other  forms  are  from  cases, 
and  are  in  more  detail  than  the  forms  recommended  for  use  by  the  Commission.] 

No.  1.  Complaint  against  a  single  carrier.* 

No.  la.  Complaint,  State  railroad  commission  and  shippers  com- 
plainants. 

No.  2.  Complaint  against  two  or  more  carriers.* 

No.  2a.  Petition  by  voluntary  association  against  two  carriers. 

No.  2b.  Alleging  violation  of  section  4  of  the  act. 

No.  2c.  Seeking  obedience  to  section  6. 

No.  2d.  Prayer  for  compliance  with  section  6. 

No.  2e.  By  a  common  carrier  seeking  the  establishment  of  a  through 
route  and  joint  rates  with  another. 

No.  2f.  Prayer  for  through  routes  and  joint  rates. 

No.  3.  Answer.* 

No.  3a.  Another  form  of  answer. 

No.  3b.  Another  form  of  answer. 

No.  3c.  Another  form  of  answer. 

No.  4.  Notice  by  carrier  under  Rule  V  (notice  in  nature  of  de- 
murrer).* 

No.  5.  Subprena.* 

No.  6.  Notice  of  taking  depositions  under  Rule  XII.* 

No.  7.  Motion  for  allowance  of  time  to  file  petition  of  intervention. 

No.  8.  Motion  for  leave  to  intervene. 

No.  8a.  Intervening  petition. 

No.  9.  Form  of  prayers. 

No.  10.  Another  form  of  prayers. 

No.  11.  Allegation  in  petition  setting  up  defense  of  carrier. 

No.  Ha.  Form  prescribed  for  special  reparation  cases. 


315 


316  FORMS — COMMISSION 

No.  1. — Complaint  against  a  single  carrier 

INTERSTATE  COMMERCE  COMMISSION 

A.B. 

against 

THE     RAILROAD 

Company. 

The  petition  of  the  above-named  complainant  respectfully  shows : 

I.  That   (here  let  complainant  state  his  occupation  and  place  of 
business}. 

II.  That  the  defendant  above  named  is  a  common  carrier  engaged 
in  the  transportation  of  passengers  and  property  by  railroad  between 

points  in  the  State  of and  points  in  the  State  of ,  and  as 

such  common  carrier  is  subject  to  the  provisions  of  the  act  to  regulate 
commerce,  approved  February  4,  1887,  and  acts  amendatory  thereof 
or  supplementary  thereto. 

III.  That   (here  state  concisely  the  matters  intended  to  be  com- 
plained of.     Continue  numbering  each  succeeding  paragraph  as  in 
Nos.  I,  II,  and  III}. 

Wherefore  the  petitioner  prays  that  the  defendant  may  be  re- 
quired to  answer  the  charges  herein,  and  that  after  due  hearing  and 
investigation  an  order  be  made  commanding  the  defendant  to  cease 
and  desist  from  said  violations  of  the  act  to  regulate  commerce,  and 
for  such  other  and  further  order  as  the  Commission  may  deem  neces- 
sary in  the  premises.  (The  prayer  may  be  varied  so  as  to  ask  also 
for  the  ascertainment  of  lawful  rates  or  practices  and  an  order  re- 
quiring the  carrier  to  conform  thereto.  If  reparation  for  any  wrong 
or  injury  be  desired,  the  petitioner  should  state  the  nature  and  ex- 
tent of  the  reparation  he  deems  proper.) 

Dated  at , ,  190. .. 

A.  B. 
(Complainant's  signature.} 


No.  la. — State  Railroad  commission  and  shippers  complainants 

(CAPTION.) 

To  the  Interstate  Commerce  Commission: 

The  petition  of  the  above-named  complainants  respectfully  shows : 


(a)  That  the  complainants,  A  B,  C  D,  and  E  F,  are  the  duly  ap- 
pointed and  qualified  Commissioners  of  the  Railroad  Commission  of 


FORMS — COMMISSION  317 

the  State  of ;  that  said  Commission  was  duly  created  and  or- 
ganized and  now  exists  under  the  laws  of  the  State  of ;  that 

said  Commissioners  are  authorized  by  said  laws  to  complain  to  the 
Interstate  Commerce  Commission  of  matters  which  they  think  con- 
stitute a  violation  of  the  act  to  regulate  commerce ;  and  that  said  Com- 
missioners join  in  this  complaint  on  behalf  of  the  people  of  the  State 
of 

(6)  That  complainant,  the  Z Coal  Company,  is  a  corporation 

organized  under  the  laws  of  the  State  of ;  that  it  has  an  office 

at  ......  in  the  State  of ;  that  it  is  engaged  in  mining,  ship- 
ping, and  selling  coal;  that  it  mines  coal  at  the  shipping  points  of 

and ,  all  in  the  State  of ,  and  ships  it  from  said 

points  to and  other  places  in  the  State  of over  the  lines 

of  railway  of  the  above-named  defendants,  the  K &L 

Railroad  Company  and  the  P &Q Railway  Company. 

(c)     (Describe  additional  complainants  in  the  same  manner.) 

II 

That  each  of  the  above-named  defendants,  the  K &L 

Railroad  Company  and  the  P &Q Railway  Company,  is 

a  common  carrier  engaged  in  the  transportation  of  property  by  rail- 
road, between  points  in  the  different  States  of  the  United  States,  and 
as  such  common  carrier  is  subject  to  the  provisions  of  the  act  to 
regulate  commerce,  approved  February  4,  1887,  and  acts  amendatory 
thereof  or  supplementary  thereto. 

Ill 

(a)  That  the  defendants,  the  K &L Railroad  Com- 
pany, now  exact  for  the  transportation  of  coal  in  car  lots  to in 

the  State  of from in  the  State  of 70  cents  per 

ton;  but  the  said  railroads  had  established  and  filed  with  the  Inter- 
state Commerce  Commission  schedules  of  rates  wherein  and  whereby 
it  is  provided  that  said  rate  on  said  commodity  shall  be  increased  to 
the  extent  of cents  per  ton  on  and  after  May  1,  190. .. 

(6)     (Describe  advances  in  rates  by  the  other  carriers.) 

IV 

That  each  of  the  increases  in  rates  above-mentioned  is,  and  each 
of  the  increased  rates  which  result  therefrom  when  made  effective  as 
aforesaid  will  be,  excessive,  unreasonable,  and  unjust,  and  in  viola- 
tion of  the  provisions  of  the  act  to  regulate  commerce,  particularly 
section  1 -thereof. 


318  FORMS — COMMISSION 

V 

That  the  complainant  coal  dealers  herein  named  have  sold,  and 

are  under  contract  to  deliver,  coal  in  the  State  of from  time  to 

time  between  now  and  April  15,  190 . . ,  at  fixed  prices,  which  include 
the  charges  for  transporting  the  coal  to  said  destination  points  from 
the  shipping  points  hereinbefore  mentioned;  that  said  contracts  by 
their  terms  are  to  remain  in  force  until  the  said  April  15;  that  the 
profit  derived  in  each  instance  by  such  complainants  upon  the  coal 
to  which  said  contracts  relate  at  the  rates  of  transportation  now  in 
force,  as  aforesaid,  is  less,  and,  in  some  instances,  much  less,  than  the 

said  advance  of cents  per  ton ;  that  said  contracts  were  entered 

into  by  such  complainants  only  after  they  had  conferred  with  the  de- 
fendants named  in  this  complaint,  and  had  been  assured  by  the  latter 

that  the  transportation  charges  on  coal  to   in  the  State  of 

from  said  shipping  points  above-named,  would  not  be  changed 

previous  to  said  April  15. 

VI 

That  the  complainant  coal  dealers  named  herein  are  under  con- 
tracts with  their  employees,  and  thereby  obligated,  to  pay  to  such  em- 
ployees a  fixed  schedule  of  wages  for  services  in  connection  with  the 
mining  and  preparation  of  said  coal;  that  when  said  schedules  were 
agreed  upon  and  entered  into  by  and  between  such  complainants  and 

their  employees,  the  rates  of  transportation  on  coal  to   and 

above  mentioned  were  the  same  as  those  now  in  force,  and  such 

rates  and  their  relation  to  other  rates  exacted  for  the  transportation 

of  coal  to   and   from  territories  of  production  other 

than  those  hereinbefore  specified  but  which  are  hereinafter  referred 
to,  form  the  basis  for  determining  in  each  instance  wages  to  be  paid 
by  such  complainants  and  their  said  employees. 

VII 

That  the  complainant  coal  dealers  herein  named  compete  in 

and   (destinations)   with  other  coal  dealers  to  ship  coal  to 

said  points  from  coal  mines  located  in  the  States  of and , 

and  that  the  coal  of  said  complainants  is  much  inferior  in  quality  to 
that  handled  and  sold  by  said  other  coal  dealers. 

VIII 

That  the  rates  exacted  at  the  present  time  by  defendants,  as  afore- 
said, for  transporting  coal  in  carloads  to and from  the 

shipping  points  first  hereinbefore   named  have  been   continuously 


FORMS — COMMISSION  319 

maintained  in  force  by  said  defendants  during  several  years  last 
passed;  that  said  rates  are,  and  each  of  them  is,  just  and  equitable 
and  satisfactory  to  all  parties  interested  therein,  with  the  possible 
exception  of  said  defendants,  and  were  established  and  put  in  force 
as  aforesaid  by  said  defendants  as  a  result  of  proper  consideration  of 
all  the  elements  which  should  and  did  affect  them  at  the  time  they 
were  so  put  in  force,  including  the  elements  hereinbefore  mentioned 
and  described;  that  each  of  said  elements  and  the  circumstances  and 

conditions  pertaining  to  the  transportation  of  coal  to from  the 

shipping  points  first  hereinbefore  named  are  the  same  now  that  they 
were  when  the  rates  put  in  force,  as  above  stated,  were  established 
and  made  effective,  except  that  the  density  of  traffic  on  the  lines  of 
railway  of  the  defendants  and  the  gross  and  net  earnings  of  said  de- 
fendants are  much  greater  now  than  they  were  then. 

IX 

That  the  increase  in  rates  provided  for  by  said  defendants  in  the 
schedules  filed  with  the  Interstate  Commerce  Commission,  as  afore- 
said, were  established  by  concert  of  action  and  unlawful  agreement 
by  and  among  all  the  defendants  named  in  this  complaint,  wholly  in 
their  own  interests  and  regardless  of  the  interests  of  the  complainant 
coal  dealers  named  herein  and  also  without  reference  to  the  interests 
of  the  general  public. 


That  if  the  said  increases  in  rates  are  made  effective,  as  provided 
for  by  said  defendants  in  the  schedules  of  rates  filed  with  the  Inter- 
state Commerce  Commission,  as  aforesaid,  the  increased  rates  thus 
made  will  bring  about  results,  as  follows :  That  the  complainants  who 

have  sold  and  are  under  contract  to  deliver  coal  in and , 

as  above  described,  will  suffer  losses  instead  of  deriving  profits  from 
said  contract;  the  complainant  dealers  named  herein  will  be  unable 

to  compete  successfully  in   and  with  said  other  coal 

dealers;  the  amount  of  coal  said  complainant  will  be  able  to  mine, 
ship,  and  sell  will  thereby  be  diminished  in  quantity ;  the  employment 
said  complainants  will  be  able  to  furnish  to  their  employees  will  be 
less  than  it  is  at  present;  the  equitable  adjustment  now  existing  be- 
tween said  complainants'  mines  and  employees,  on  the  one  hand,  and 
the  mines  and  employees  of  such  coal  dealers,  on  the  other  hand,  will 
become  disrupted,  which  will  cause  much  demoralization,  and  the  con- 
sumers located  at and will  be  deprived  of  competition 

they  now  enjoy  and  compelled  to  pay  higher  prices  than  they  are 
now  paying  for  coal;  and  irreparable  injury  will  thus  result  to  said 


320  FORMS — COMMISSION 

complainant  coal  dealers,  to  the  employees  of  such  complainants,  to 
other  people  located  at  said  shipping  points,  to  the  consumers  of  coal 
located  in and ,  and  to  the  general  public. 

Wherefore,  complainants  pray  that  the  defendants  be  severally  re- 
quired to  answer  the  charges  herein ;  that  after  due  hearing  and  in- 
vestigation an  order  be  made  commanding  said  defendants  to  refrain 
from  putting  or  maintaining  in  force  the  increased  rates  on  coal 
named  in  schedules  filed  with  the  Interstate  Commerce  Commission, 
as  aforesaid,  and  to  charge  as  maxima  in  future  for  the  transporta- 
tion of  coal,  in  carloads,  to and from  said  shipping 

points,  as  herein  named,  such  rates  of  transportation  as  the  Com- 
mission may  deem  reasonable  and  just;  and  that  such  other  and 
further  order,  or  orders,  be  made  as  the  Commission  may  consider 
proper  in  the  premises  and  complainants'  cause  may  appear  to  re- 
quire. 

Dated  at this day  of ,  190. .. 


(Signature  of  Complainant) 

(Address) 
( Counsel ) 

(Address.) 


No.  2. — Complaint  against  two  or  more  carriers 

INTERSTATE  COMMERCE  COMMISSION 

A.B. 

against 

THE     RAILROAD 

Company, 
and 

THE     RAILROAD 

Company, 

The  petition  of  the  above-named  complainant  respectfully  shows : 

I.  That   (here  let  complainant  state  his  occupation  and  place  of 
business). 

II.  That  the  defendants  above  named  are  common  carriers  engaged 
in  the  transportation  of  passengers  and  property  by  continuous  car- 
riage or  shipment,  wholly  by  railroad    (or  partly  by  railroad  and 
partly  by  water,  as  the  case  may  be),  between  points  in  the  State  of 
and  points  in  the  State  of ,  and  as  such  common  car- 
riers are  subject  to  the  provisions  of  the  act  to  regulate  commerce,  ap- 
proved February  4,  1887,  and  acts  amendatory  thereof  or  supplemen- 
tary thereto. 

(Then  proceed  as  in  Form  1.) 


FORMS — COMMISSION  321 

No.  2a. — Petition  of  voluntary  association 1 

(CAPTION) 
Address : 

I 

The  complainant  is  a  voluntary  association  whose  members  are 
engaged  in  mining,  shipping,  and  selling  coal,  there  mines  being  lo- 
cated in  the  States  of at  different  points  on  the  lines  of  rail- 
way of  the  F &  G Railroad  Company  and  the  H & 

I Railway  Company,  defendants  herein.  That  one  of  the  pur- 
poses for  which  complainant  was  organized  and  now  exists  is  to  pro- 
cure for  the  benefit  of  its  members  reasonable,  just,  and  nondiscrim- 
inating  rates  of  transportation  on  coal  from  shipping  points  in  the 

State  of aforesaid  to  points  of  consumption  in  the  States  of 

and  ,  and  other  States  and  Territories  of  the  United 

States,  and  also  the  markets  of  consumption  in  the  Republic  of  Mex- 
ico. That  the  principal  office  of  the  complainant  is  at ,  in  the 

State  of ,  and  that  complainant  institutes  this  proceeding  on 

behalf  of  its  members  and  also  in  the  interest  of  the  general  public 
located  at  and  in  the  vicinity  of  the  shipping  and  consuming  points, 
as  aforesaid. 

II 

That  each  and  all  of  the  above-mentioned  defendants  is  a  common 
carrier  engaged  in  the  transportation  of  property  by  railroad  between 
points  in  the  different  States  of  the  United  States,  and  particularly 

from  shipping  points  in  the  States  of and aforesaid 

to  points  of  consumption  and  ports  of  transhipment  in  the  States  of 

and ,  and  as  such  common  carriers,  are  subject  to  the 

provisions  of  the  act  to  regulate  commerce,  approved  February  4, 
1887,  and  acts  amendatory  thereof  or  supplementary  thereto. 

Ill 

That  the  defendants,  the  F &  G Railroad  Company 

and  the  H &I Railway  Company,  exact  for  the  trans- 
portation of  lump  coal  and  slack  coal,  in  carloads,  as  follows : 

From  Tifton  and  Ada,  in  the  State  of  ,  and  from  Arthur,  in  the  State 

of   

Average  Bate  per  ton  of 

To —                          distance  2,000  pounds 

Smithville 167  $1.40 

Jonesville  183  1.55 

Adamtown    208  1 . 65 

etc etc.  etc. 

1  Adapted  from  petition  in  Oklahoma  &  Arkansas  Coal  Traffic  Bureau  v.  C.  B. 
I.  &  P.  B.  Co.  (I.  C.  C.  Docket  No.  1097). 


322  FORMS  —  COMMISSION 

That  each  of  said  rates  is  excessive,  unreasonable,  and  unjust,  and 
in  violation  of  the  provisions  of  the  act  to  regulate  commerce,  par- 
ticularly section  1  thereof,  and  that  reasonable  and  just  rates  for 
such  transportation  from  said  shipping  points  would  not  exceed  the 
following  : 

Bate  per  ton  of 

To  —  2,000  pounds 

Smithville    .............................  $1.10 

Jonesville   ..............................  1.  25 

Adamtown    .............................  1.40 

etc  ..................................  etc. 


(Repeat  similar  allegations  for  other  routes  and  other  commodities, 
if  it  be  desired  to  raise  the  question.) 


That  all  the  rates  hereinbefore  mentioned  as  exacted  for  the  trans- 
portation of  coal,  in  carloads,  over  defendants'  line  of  railway  from 
said  shipping  point  in  the  States  of and to  said  con- 
suming or  destination  points  in  the  State  of and were 

established  and  are  now  maintained  in  force  and  exacted,  as  afore- 
said, by  mutual  agreement  and  concert  of  action  by  and  among  all 
carriers  named  as  defendants  in  this  proceeding. 

VI 

That  complainant's  members  are  now  engaged  in  selling  coal  at 
said  consuming  or  destination  points  and  ship  same  thereto  from 
their  respective  mines  in  the  States  of  and over  de- 
fendants' lines  of  railway,  as  aforesaid,  and  wish  to  increase  said 
business,  but  are  prevented  from  doing  so  by  the  excessive  and  un- 
reasonable rates  of  transportation  hereinbefore  set  forth  and  by  the 
discriminations  hereinafter  described. 

VII 

That  the  defendant,  the  P &Q Company,  dictates  the 

policy  of  the  R &  S Railway  Company  and  the  T 

&  U Railroad  Company ;  that,  pursuant  to  such  dictation,  the 

last  two  named  defendants  participate  in  joint  rates  of  transporta- 
tion on  coal,  in  carloads,  from  shipping  points  in  the  State  of to 

the  consuming  or  destination  points  in  the  State  of ,  hereinbe- 
fore mentioned,  which  are  much  less  per  ton  per  mile  than  the  rates 
per  ton  per  mile  contemporaneously  exacted  by  them  in  connection 


FORMS — COMMISSION  323 

with  other  defendants  herein  named,  for  the  transportation  of  coal, 

in  carloads,  from  the  shipping  points  in  the  States  of   and 

(as  mentioned  in  Paragraph  IV  hereof)  to  the  destination  or 

consuming  points ;  that  in  selling  their  coal  at  said  destination  points, 
complainant's  members  are  obliged  to  compete,  and  do  compete,  with 
other  dealers  to  make  shipments  of  coal  thereto  from  such  shipping 

points  in  the  State  of ,  and  that  such  shipping  points  are  as 

follows:  Johns,  Aldens,  etc. 

VIII 

(Similar  allegations  may  be  made  for  other  defendants,  if  it  ~be  de- 
sired to  compare  the  relation  as  between  different  points  of  origin  and 
the  same  points  of  destination.) 

IX 

That  the  cost  of  producing  the  coal  shipped  by  complainant's  mem- 
bers, as  aforesaid,  is  much  greater  than  the  cost  of  producing  the  coal 

shipped  from  points  in  the  State  of at  the  mines  mentioned 

in  Paragraph  VII,  and  also  much  greater  than  the  cost  of  producing 

the  coal  shipped  from  the  points  in  the  State  of ,  as  set  forth 

in  Paragraph  VIII  hereof ;  that  the  average  distance  of  the  consuming 
points  or  destination  from  the  shipping  points  referred  to  in  Para- 
graph IV  hereof  is  much  less  than  the  average  distance  to  the  same 
consuming  or  destination  points  from  the  shipping  points  referred  to 
in  Paragraphs  VII  and  VIII  hereof;  but  that  this  difference  in  dis- 
tance in  favor  of  coal  shipped  by  complainant 's  members  is  more  than 
offset  by  the  discriminations  in  rates  and  differences  in  cost  of  produc- 
tion above  set  forth,  and  that,  as  a  consequence,  complainant's  mem- 
bers are  unable  to  compete  successfully  at  said  consuming  or  destina- 
tion points  in  the  State  of with  other  dealers  to  make  ship- 
ments of  coal  thereto  from  the  shipping  points  mentioned  in  Para- 
graphs VII  and  VIII,  and  complainant's  members  are  deprived  of  the 
benefits  they  would  receive  from  the  natural  advantage  possessed  by 
them,  that  is  to  say,  the  advantage  of  owning  coal  mines  which  are  lo- 
cated nearer  to  said  destination  points  than  are  the  coal  mines  of 
their  said  competitors. 


That  the  discrimination  in  rates  hereinabove  described  are  made  by 
mutual  agreement  and  concert  of  action  by  and  among  all  the  car- 
riers named  as  defendants  in  this  proceeding. 


324  FORMS — COMMISSION 

XI 

That  as  a  direct  consequence  of  the  excessive  rates  exacted  and  dis- 
criminations practiced  by  defendants,  as  above  set  forth,  the  tonnage 

on  coal  produced  in  the  States  of and has  decreased  in 

recent  years,  while  during  the  same  time  the  tonnage  of  coal  pro- 
duced in  the  States  of and has  materially  increased. 

xn 

That  by  reason  of  the  premises,  the  defendants  are,  and  each  of  them 
is,  subjecting  complainant's  members  to  the  payment  of  unreasonable 
and  unjust  rates  of  transportation  and  subjecting  the  complainant's 
members  and  their  traffic  and  the  general  public  located  at  and  in 

the  vicinity  of  the  said  shipping  points  in  the  States  of and 

,  and  said  consuming  or  destination  points  in  the  States  of 

and to  undue  and  unreasonable  prejudice  and  dis- 
advantage, and  giving  to  said  other  coal  dealers  and  their  traffic  and 

members  of  the  general  public  located  at and  in  the  vicinity 

of  the  aforesaid  shipping  points  mentioned  in  Paragraphs  VII  and 
Vin  undue  and  unreasonable  preference  and  advantage,  in  viola- 
tion of  the  provisions  of  said  act  to  regulate  commerce,  particularly 
sections  1  and  3  thereof. 

"Wherefore,  Complainant  prays  that  the  defendants  may  be  sever- 
ally required  to  answer  the  charges  herein;  that,  after  due  hearing 
and  investigation,  an  order  be  made  commanding  said  defendants, 
and  each  of  them,  to  cease  and  desist  from  the  aforesaid  violations 
of  the  said  Act  to  regulate  commerce,  and  apply  as  maxima  in  the  fu- 
ture to  the  transportation  of  coal,  in  carloads,  from  said  shipping 
points  in  the  States  of and to  said  consuming  or  desti- 
nation points  in  the  States  of and such  rates  of  trans- 
portation as  the  Commission  may  deem  reasonable  and  just,  and  that 
such  other  and  further  order,  or  orders,  may  be  made  as  the  Commis- 
sion may  consider  proper  in  the  premises  and  the  complainant's  cause 
may  appear  to  require. 

Dated  at , ; ,  190... 

UNION  COAL  ASSOCIATION, 
By ,  Traffic  Manager. 

(Address) 


(Counsel) 
(Address) 


FORMS — COMMISSION  325 

No  2b. — Alleging  violation  of  section  4  of  the  act a 

That  while  defendants  exact  from  complainants  cents  per 

hundred  pounds  for  the  transportation  of from  A ,  in 

the  State  of ,  to  the  following  named  points  in  the  State  of 

,  defendants  exact  from  parties  other  than  complainants  for 

the  transportation  of from  B ,  State  of ,  to  the 

same  points  in  the  State  of ,  when  shipped  by  such  other  par- 
ties, only  cents  per  hundred  pounds.  That  the  route  over 

which  the  said  commodity  goes  is  exactly  the  same  in  each  instance 

when  the  initial  point  of  shipment  is  B ,  except  that  when  the 

initial  point  is  B ,  the  shipments  are  handled  through  A , 

and  are  handled  by  defendants  over  a  greater  distance  than  when 

the  initial  point  is  A That  in  each  instance  the  transportation 

services  pertaining  to  said  shipments,  regardless  of  whether  the  traf- 
fic originated  at  A or  B ,  are  performed  by  defendants 

under  substantially  similar  circumstances  and  conditions.  An4  that, 
by  reason  of  the  premises,  defendants  exact  from  complainants  a 

greater  compensation  in  the  aggregate  for  the  transportation  of 

over  the  shorter  distance  from  A than  defendants  contem- 
poraneously exact  from  parties  other  than  the  complainants  for  the 

transportation  of  like  traffic  over  the  greater  distance  from  B , 

to  said  points  in  the  State  of ,  the  shorter  haul  being  included 

in  the  longer  haul,  and  the  transportation  being  over  the  same  line 
and  in  the  same  direction;  and  that  defendants  thereby  violate  the 
provisions  of  the  act  to  regulate  commerce,  as  amended,  particularly 
section  4  thereof. 


No.  2c. — Seeking  obedience  to  section  6 

That  prior  to  the day  of ,  no  tariffs  for  public  in- 
spection were  kept  by  the  said  defendant  in  its  offices  at or 

,  but  that  the  complainant  states  on  information  and  belief 

that  the  tariffs  filed  with'  the  Interstate  Commerce  Commission  dur- 
ing said  period  showed  a  uniform  rate  of cents  per  hundred 

pounds  on of  all  kinds  between ,  in  the  State  of 

and ,  in  the  State  of ;  that  said  failure  to  post  tariffs 

or  schedules  in  accordance  with  section  6  of  the  act  to  regulate  com- 
merce and  the  rules  prescribed  by  the  Interstate  Commerce  Commis- 
sion constitute  a  violation  of  said  act. 

1  Adapted  from  Eandolph  Lumber  Company  v.  S.  A.  L.  E.  Co.  (I.  C.  C.  Docket 
No.  1056). 


326  FORMS — COMMISSION 

No.  2d. — Prayer  for  compliance  with  section  6 

That  the  said  Commission  determine  and  prescribe  what  regulation 
or  practice  in  respect  to  the  publication  of  rates  is  just,  fair  and  rea- 
sonable, and  that  it  make  an  order  requiring  said  defendant  to  desist 
from  said  unlawful  practices  and  require  it  to  thereafter  publish  and 
post  at  its  stations,  in  accordance  with  the  law  and  the  rules  of  the 
Commission,  its  schedules  or  tariffs. 


No.  2e. — By  a  common  carrier  seeking  the  establishment  of  a  through 
route  and  joint  rates  with  another 

That  the  complainant  carrier  has  a  physical  connection  with  the 
rails  of  the  defendant  carrier  (or  that  same  can  be  easily  made  at  a 
small  cost),  and  that  the  complainant  has  at  numerous  times  requested 
said  defendant  to  join  it  in  establishing  through  routes  and  joint  rates 
covering  shipments  from  points  upon  the  line  of  the  defendant  outside 

of  the  city  of to  points  upon  the  railroad  of  the  complainant. 

and  from  points  upon  the  railroad  of  the  complainant  to  points  upon 

the  railroad  of  the  defendant,  situated  outside  of  the  city  of , 

and  it  has  been  at  all  times,  and  now  is,  willing  to  join  with  said  de- 
fendant in  establishing  through  routes  and  joint  rates  to  cover  ship- 
ments of  all  classes  of  freight  and  merchandise  from  points  upon  its 
railroad  to  points  on  the  railroad  of  the  said  defendant  carrier,  out- 
side of  the  city  of ,  and  to  points  upon  said  railroad  of  the  de- 
fendant outside  of  the  city  of to  points  upon  the  railroad  of 

complainant,  and  that  the  defendant  has  refused  and  now  refuses, 
to  join  the  complainant  in  establishing  through  routes  and  joint  rates, 
as  above  set  forth,  but  said  defendant  has  in  all  cases  required  the  pay- 
ment by  the  owners  of  the  property  shipped  upon  its  lines  of  the  full 
local  rates  to  and  from  the  point  of  destination  upon  its  railroad. 


No.  2f. — Prayer  for  through  routes  and  joint  rates 

That  the  Commission  establish  through  routes  and  joint  rates  cov- 
ering the  shipment  of  such  articles  of  merchandise  as,  on  investigation, 
is  shown  to  be  the  subject  of  transportation  from  points  along  the  com- 
plainant's railroad  to  points  on  the  line  of  the  defendant's  railroads, 
outside  the  city  of ,  and  from  points  on  the  Ime  of  the  defend- 
ant 's  railroad  outside  the  city  of to  points  upon  the  line  of 

the  complainant's  railroad,  over  the  railroads  of  complainant  and  de- 
fendant; the  said  joint  rate  so  established  to  be  the  maximum  to  be 


FORMS — COMMISSION  327 

charged,  and  that  the  Commission  also  prescribe  a  division  of  such 
rate,  or  rates,  and  the  terms  and  conditions  upon  which  such  through 
route  shall  be  operated. 


No.  3. — Answer. 

INTERSTATE  COMMERCE  COMMISSION 

A.B.  \ 

against  v 

THE RAILROAD  COMPANY,     j 

The  above-named  defendant,  for  answer  to  the  complaint  in  this 
proceeding,  respectfully  states — 

I.  That  (here  follow  the  usual  admissions,  denials,  and  averments. 
Continue  numbering  each  succeeding  paragraph). 

Wherefore  the  defendant  prays  that  the  complaint  in  this  proceed- 
ing be  dismissed. 

THE RAILROAD  COMPANY, 

By  E.  F. 

(Title  of  officer) 


No.  3a. — Another  form  of  answer 

(CAPTION) 
SEPARATE  ANSWER  OP  THE  F &G RAILROAD  COMPANY 

Now  comes  the  F &  G Railroad  Company,  and,  for  its 

separate  answer  to  the  complaint  in  the  above-entitled  proceeding, 
denies  each  and  every  allegation  in  complainant's  petition  contained, 
and,  having  fully  answered,  asks  that  it  be  hence  dismissed,  with 
costs  in  this  behalf  incurred. 

A B , 

Attorney  for  F &  Q Railroad  Co., 


(Address) 


No.  3b. — Another  form  of  answer 
(CAPTION) 

SEPARATE  ANSWER  OP  THE  H &I RAILWAY  COMPANY 

Comes  now  the  H &  I Railway  Company,  one  of  the 


328  FORMS — COMMISSION 

corporations  defendant  in  this  proceeding,  and  admits  that  it  is  a 
common  carrier,  as  staged  in  the  complaint,  but  denies  that  the  rates 
complained  of  against  it  are  excessive,  unreasonable,  or  unjust,  or  in 
violation  of  any  of  the  provisions  of  the  act  to  regulate  commerce, 
approved  February  4,  1887,  and  acts  amendatory  thereof  or  sup- 
plementary thereto. 

Wherefore,  This  defendant  asks  that  the  complaint  in  this  proceed- 
ing be  dismissed. 

H &I RAILWAY  COMPANY, 

By  E W ,  General  Solicitor, 


(Addresi) 


No.  3c. — Another  form  of  answer. 

(CAPTION) 
SEPARATE  ANSWER  OP  THE & RAILROAD  COMPANY 

Now  comes  the & Railroad  Company,  one  of  the  de- 
fendants in  the  above-entitled  cause,  and  answering  the  complaint 
filed  against  it  in  said  cause,  says : 


It  denies  that  the  existing  rates  are  unreasonable  or  in  violation  of 
said  act  to  regulate  commerce,  or  that  said  rates  are  in  excess  of  the 
value  of  the  services  rendered  by  the  carriers  in  the  movement  and 
transportation  of  coal. 

n 

Defendant  denies  also  that  the  rates  proposed  by  complainant  are 
reasonable,  and  says  that,  as  a  matter  of  fact,  said  rates  are  unrea- 
sonable, and  would  not  pay  anything  like  the  expenses  of  transporting 
the  coal. 

in 

This  defendant  says  that  while  it  participated  in  said  coal  rates 
to  the  points  upon  its  line  mentioned  in  complainant's  petition,  none 
of  the  territory  covered  by  said  petition  is  contiguous  to  this  defend- 
ant's line  of  railroad.  That  it  is  engaged  in  the  transportation  of  coal 

largely  from  points  in  the  State  of  ,  and  that  the  prevailing 

rates  on  coal  are  adjusted  with  reference  to  the  rates  from  points  in 

the  States  of and ,  and  that  the  existing  adjustment  of 

said  rates  should  not,  in  any  wise,  be  disturbed. 


FORMS — COMMISSION  329 

IV 

This  defendant  says  that  it  is  not  in  a  financial  condition  to  stand 
any  reduction  in  rates.  That,  in  view  of  the  increased  cost  of  opera- 
tion, resulting  from  many  causes,  and  in  view  of  the  fact  that  rates 
on  coal  are  already  lower  than  on  almost  any  other  commodity  trans- 
ported, it  avers  that  the  existing  rates  are  reasonably  low,  and  that 
to  further  reduce  them  would  result  in  a  confiscation  of  defendant's 
property  without  due  process  of  law,  in  violation  of  the  Constitution 
and  laws  of  the  United  States. 

Wherefore,  This  defendant  prays  that  said  complaint  be  dismissed. 

G H , 

Attorney  for & Railroad  Co., 


(Address) 

No.  4. — Notice  by  carrier  under  Rule  V* 

INTERSTATE  COMMERCE  COMMISSION 

A.B.  } 

against  v 

THE RAILROAD  COMPANY,    j 

Notice  is  hereby  given  under  Rule  V  of  the  Rules  of  Practice  in 
proceedings  before  the  Commission  that  a  hearing  is  desired  in  this 
proceeding  upon  the  facts  as  stated  in  the  complaint. 

THE RAILROAD  COMPANY, 

By  E.  F. 

(Title  of  officer.) 


No.  5. — Subpoena  * 
To  . 


You  are  hereby  required  to  appear  before in  the  matter  of 

a  complaint  of  against  ,  as  a  witness  on  the  part  of 

on  the day  of ,  190. .,  at o'clock  . ..  m.  at 

,  and  bring  with  you  then  and  there 

Dated 

(Seal.)  , 

Commissioner. 


Attorney  for 


8  See  Eules  of  Practice,  post.    This  notice  serves  the  purpose  of  a  demurrer. 
4  Printed  subpoenas  are  furnished  by  the  Commission. 


330  POEMS — COMMISSION 

(NOTICE. — Witness  fees  for  attendance  under  this  subpoena  are  to  be 
paid  by  the  party  at  whose  instance  the  witness  is  summoned,  and 
every  copy  of  this  summons  for  the  witness  must  contain  a  copy  of 
this  notice.) 


No.  6. — Notice  of  taking  depositions  under  Rule  XII 

INTERSTATE  COMMERCE  COMMISSION 

A.B. 

against 
THE RAILROAD  COMPANY. 

You  are  hereby  notified  that  G.  H.  will  be  examined  before  C.  D., 

a (title  of  officer  or  magistrate},  at ,  on  the day  of 

,  190. . ,  at o'clock  in  the noon,  as  a  witness  for  the 

above-named  complainant  (or  defendant,  as  the  case  may  be),  ac- 
cording to  act  of  Congress  in  such  case  made  and  provided,  and  the 
Rules  of  Practice  of  the  Interstate  Commerce  Commission,  at  which 
time  and  place  you  are  notified  to  be  present  and  take  part  in  the 
examination  of  the  said  witness. 

Dated ,  190... 

I.  J. 
(Signature  of  complainant  or  defendant,  or  of  counsel.) 

To  A.  B.,  the  above-named  complainant  (or  The Railroad 

Company,  the  above-named  defendant;  or  to  K.  L.,  counsel  for  the 
above-named  complainant  or  defendant.} 


No.  7. — Motion  for  allowance  of  time  to  file  petition  of  intervention 

(CAPTION) 
Address: 

Now  comes  the  Chamber  of  Commerce  of ,  a  trade  and  com- 
merce organization  of  the  city  of ,  by  its  attorneys, and 

,  and  move  the  Commission  for  an  allowance  of  thirty  days 

within  which  to  file  an  intervening  petition  in  the  above-entitled  cause, 
and  in  support  of  said  motion,  alleges  that  it  has  not  had  sufficient 
time  within  which  to  file  an  intervening  petition  in  the  above-entitled 

cause,  and  in  support  of  said  motion,  alleges  that  the  city  of 

is  vitally  interested  in  the  issues  raised  and  made  by  the  pleadings 
in  this  proceeding,  and  it  further  alleges  that  it  has  not  had  suf- 


POEMS — COMMISSION  331 

ficient  time  within  which  to  properly  prepare  its  petition  of  inter- 
vention, setting  forth  the  facts  and  the  grounds  upon  which  they  wish 
to  ask  the  leave  of  the  Commission  to  be  made  parties  in  this  pro- 
ceeding. 


(Signature  of  Petitioner) 

(Address) 
(Counsel) 

(Address) 


No.  8. — Motion  for  leave  to  intervene ' 

(CAPTION) 
Address : 

Comes  now of ,  in  the  State  of and  asks  leave 

to  intervene  in  the  above  entitled  proceeding  and  for  cause  states  that 

he  is  engaged  in  handling  merchandise  at   ,  in  the  State  of 

and  is  interested  as  a  shipper  in  the  matters  and  things  stated 

in  the  petition,  and  will  be  affected  by  the  decision  to  be  rendered. 


(Signature  of  Petitioner) 

(Address) 
(Counsel) 

(Address) 


No.  8a. — Intervening  petition 

(CAPTION) 
Address: 

The  petition  of of in  the  State  of 

respectfully  shows: 


That  he  is  a  merchant  dealing  in at in  the  State  of 

(or  if  an  association,  set  out  the  organization,  as  if  filing  an 

original  petition). 

'Blakenship  v.  B.  S.  &  C.  E.  Co.  (I.  C.  C.  Docket  1777). 


332  FORMS — COMMISSION 

n 

That  heretofore,  to  wit,  on  the day  of ,  19 . . ,  the  peti- 
tioner was,  by  order,  permitted  to  intervene  in  the  above  entitled 
proceeding.6 

m 

That  the  petitioner  is  engaged  in  the  manufacture  and  sale  of  the 

same  commodities  ,  the  original  petitioner  herein,  and 

at  the  same  place  (or  competing  place,  as  the  case  may  be)  and  will 
be  affected  in  his  business  by  the  change  in  rates  as  sought  by  the 
original  petition  (or  change  in  practice). 

IV 

(Such  other  facts  as  may  be  germane  to  the  inquiry,  as  would  be  ap- 
propriate in  an  original  petition.) 


(The  petitioner  may  state  that  he  wishes  to  join  in  asking  a  change 
in  rates  or  practices  or  may  state  that  the  present  arrangement  is 
satisfactory  to  him  and  reasonable  and  just  and  nondiscriminatory).7 

(Usual  prayers,  as  in  original  petition,  if  leave  to  intervene  has 
been  granted ;  if  not,  a  prayer  for  leave  to  intervene  should  be  used 
in  addition). 


(Signature  of  Petitioner) 

(Address) 
(Coons  1) 

(Address) 


No.  9. — Form  of  prayers* 

Wherefore,  premises  considered,  the  complainant  says  that  the  vio- 
lation of  the  act  to  regulate  commerce,  in  that  said  rates  are  unjust 
and  unreasonable  because  the  same  are  too  high  as  alleged,  and  result 
in  an  unjust  and  unreasonable  exaction  from  the  complainant,  and 
injure  the  complainant  in  its  business  in  that  the  said  rates  prohibit  to 
a  large  extent  the  growth  of  the  complainant's  business,  the  complain- 

•  See  preceding  form. 
TSee  section  103. 
'  See  section  80. 


FORMS — COMMISSION  333 

ant  prays  that  service  of  this  petition  be  had  upon  the  defendant  car- 
riers; that  the  defendants  be  required  to  answer  this  complaint;  and 
that  the  Commission  set  the  same  down  for  hearing  at  as  early  a  date 
thereafter  as  is  deemed  practicable ;  and  that  after  the  hearing  of  said 
complaint  and  all  of  the  matters  of  fact  pertaining  thereto,  that  the 
Commission  make  its  order  that  the  carriers  cease  and  desist  from 
further  demanding,  charging  or  collecting  said  unlawful  rates  of 
freight;  and  that  the  Commission  prescribe  the  maximum  rates  of 
freight  which  the  defendants  respectively,  either  jointly  or  severally, 
shall  thereafter  demand,  charge  and  collect,  upon  the  shipments  of  the 
said  commodities  from  Grand  Rapids,  Mich.,  to  the  points  aforesaid; 
and  that  the  complainant  be  allowed  its  damages  in  the  premises ;  and 
that  the  Commission  find  the  amount  of  the  damage  which  has  accrued 
to  the  complainant  as  aforesaid;  and  that  it  make  an  order  directing 
the  carriers  liable  therefor  to  pay  the  same  to  the  complainant  as 
provided  by  law ;  and  further,  that  the  Commission  take  such  proceed- 
ings and  make  such  orders  in  the  premises  as  the  complainant  may 
show  itself  entitled  to. 

In  duty  bound  will  ever  pray.8 

A.  C.  P.  Co.,  S.  A.  W.,  Vice-President, 

Address. 

C.,  B.  &  G. 

S.  H.  C., 

Attorneys  for  Complainant, 

Ft.  Worth,  Tex. 


No.  10. — Another  form  of  prayers10 

Wherefore,  the  premises  considered,  the  complainants  pray  that  the 
defendants  above  named  may  be  severally  required  to  answer  the 
charges  herein;  that  after  due  hearing  and  investigation  an  order 
be  made  commanding  the  said  defendants  and  each  of  them  to  cease 
and  desist  from  the  aforesaid  violations  of  the  said  act  to  regulate 
commerce  and  to  establish  and  put  in  force  and  apply  as  maxima  in 
future  to  the  transportation  of  crude  limestone,  ground  limestone,  and 
lime  between  Martinsburg,  in  the  State  of  West  Virginia,  and  the 
destination  points  referred  to  in  paragraphs  III  and  V  hereof,  in  lieu 
of  the  class  rates  named  in  paragraphs  IV — &  and  V  hereof,  such 
rates  as  the  said  defendants  file  and  publish  applying  from  Bunker 
Hill,  in  the  said  State  of  West  Virginia,  to  the  destinations  aforesaid, 

8  From  Acme  Cement  Plaster  Co.  v.  L.  S.  &  M.  S.  R.  Co.  (I.  C.  C.  Docket  No. 
1434). 
10  See  section  80. 


334  FORMS — COMMISSION 

and  that  such  other  and  further  order  or  orders  may  be  made  as  the 
Commission  may  consider  proper  and  the  premises  and  complainants' 
cause  may  appear  to  require.11 
Dated  at  Baltimore,  Md.,  July  9, 1908. 

THE  S.  L.  AND  S.  C., 
By  D.  B.,  President. 
THE  W.  B.  L.  C., 
By  G.  H.,  President. 
J.  B.  C. 
F.  J.  H. 

Washington,  D.  C.,  Attorneys  for  Complainants. 


No.  11. — Allegation  in  petition  setting  up  defense  of  carrier  u 
The  complainants  are  informed  and  believe  and  upon  information 
and  belief  aver  that  the  defendant,  The  C.  V.  R.  Company,  attempt 
to  justify  its  refusal  aforesaid  upon  the  alleged  ground  that  said 
carrier  has  a  right  to  make  low  rates  upon  crude  limestone,  ground 
limestone,  and  lime  in  carloads  to  the  various  shipping  destinations 
hereinbefore  mentioned  for  the  express  purpose  of  establishing  a  lime 
and  limestone  enterprise  at  Bunker  Hill  and  deny  the  same  rates  to 
other  points  upon  its  line,  and  also  to  traffic  originating  upon  other 
lines  and  delivered  to  it ;  that  complainants  are  advised  that  said  posi- 
tion is  wholly  without  authority  of  law,  and  that  however  laudable 
it  may  be  to  establish  industries  upon  the  line  of  a  carrier  subject 
to  the  act  to  regulate  commerce,  such  purpose  cannot  be  used  to  sus- 
tain or  excuse  a  violation  of  the  act. 


No.  lla. — Form  prescribed  for  special  reparation  cases 

BEFORE  THE  INTERSTATE  COMMERCE  COMMISSION 

(Special  Docket  No ) 

.....  1  Complainant 's  No 


Complainant . . 


v. 


Co.  Claim  No. 
Co.  Claim  No. 


Co.  Claim  No 

Bequest  for  authority  to  refund 
Defendant. .  j      $ 

To  the  Interstate  Commerce  Commission: 

The Company  respectfully  requests  an  order  herein  author- 
izing the  payment  to  the  above-named  claimant . . ,  of  ,  State 

of of  the  sum  of dollars  ($ ) ,  as  special  repara- 

11  From  Standard  Lime  &  Stone  Co.  v.  C.  V.  E.  Co.  (I.  C.  C.  Docket  No.  1650). 

12  From  petition  in  Standard  Lime  &  Stone  Co.  v.  C.  V.  E.  Co.  (I,  C.  C.  Docket 
No.  1650).     (See  sec.  77.) 


FORMS — COMMISSION 


335 


tion    in    connection    with    the    following    shipment . .  :     Commodity 

,  number  of  shipments  or  carloads   ,  aggregate  weight 

From  (insert  point  of  origin)  to  (insert  destination).     Con- 
signor     ,  consignee   .......     Bill  of  lading  issued  by    


(use  initials)    Co.,  at   Date 

moved  as  follows: 

(use  initials)  Co.,  from  . . 


190...       Shipment.. 


to 


via 


(use  initials)  Co.,  from to ,  via 


via 


(use  initials)  Co.,  from to  ... 

Aggregate   freight   charges  actually  collected,   $ ,    date   paid, 

,  190... 

By  whom  paid ,  (consignor  or  consignee). 


(If  through  rate  lawfully  applicable,  use  these  spaces.) 

Rate  lawfully  applicable    per  ton   or  cwt.,   carload  min. 

for ft.  car. 

Tariff  authority ,  I.  C.  C.  No ,  page ,  effective 


(If  local  rates  lawfully  applicable,  use  these  spaces.) 

Local  from  To  Rate       C.L.  Min.         Name  of  tariff        1-i;-u-       Page  Pate 

No.  effective. 

Kate  sought  to  be  applied per  ton  or  cwt carload 

min.  wt.  ......  for ft.  car. 

Tariff  authority ,  I.  C.  C.  No ,  page ,  effective 

Aggregate  freight  charges  at  claimed  rate  would  be  $ 

Explanation  and  comments:  (Here  may  follow  such  general  com- 
ments or  explanation  as  the  case  may  require.  In  case  shipment  was 
reconsigned,  state  date  of  reconsigning  order,  point  of  reconsignment, 
and  tariff  authority  for  reconsignment.  In  case  shipment  was  mis- 
routed  by  initial  carrier,  state  routing  instructions  given  by  con- 
signor, if  any,  and  the  proper  route  in  detail ;  with  specific  admission 
that  misrouting  was  the  result  of  error  of  carrier's  agent,  if  such 
was  the  fact.) 


336 


FORMS — COMMISSION 


STATEMENT  OF  BILLING 

(The  information  in  this  statement  of  billing  must  correspond  with  the  checked 
billing  of  the  auditing  department.  If  additional  space  is  required,  carrier 
may  use  its  own  standard  form.) 

Waybilled  from to ,  via 


Date 
190 

W.  B. 

Car  in- 
itial and 
number. 

Articles. 

Weight. 

Freight. 

Advances. 

Total. 

Rate. 

Amt. 

Rate. 

Amt. 

Rate. 

Amt. 

It  is  certified  that  the  facts  as  stated  in  the  foregoing  application 
are  correct. 

It  is  admitted  that  the  rate  lawfully  applicable  at  the  time  and 
over  the  route  shipment  moved  was,  under  all  the  circumstances  and 
conditions  then  existing,  excessive  and  unreasonable.* 

It  is  agreed  that  the  order  of  the  Commission  authorizing  refund 
herein  may  require  that  the  published  tariff  rates  and  rules  upon 
which  adjustment  is  based  shall  be  maintained  (as  maxima)  for  a 
period  of  one  year  from  the  date  this  application  is  filed.* 

Respectfully  submitted. 

Company, 

Defendant, 

,    ,     By  

(City.)  (State.)  (Personal  signature.) 

190..  Its 

(An  executive  or  general  officer.) 

The  undersigned  companies  join  in  the  foregoing  application  (sig- 
natures as  above). 

*  In  misrouting  cases  this  statement  will  be  treated  as  surplusage. 


FORMS — COMMISSION  337 


1.  The  Commission  will  not  ordinarily  take  favorable  action  on  an 
application  for  special  reparation  authority  where  the  case  is  not 
presented  to  it  within  six  months  after  the  shipment  moved,  unless 
the  rate  on  which  the  adjustment  is  sought  was  actually  established 
within  six  months  after  the  date  of  the  movement. 

2.  Under  section  16  of  the  act  to  regulate  commerce,  as  inter- 
preted by  the  Commission,  all  claims  for  reparation  are  absolutely 
barred  if  not  filed  within  two  years  from  the  time  the  cause  of  action 
accrues. 

3.  This  application  should  be  accompanied  by  the  original  paid 
freight  bills  and  all  correspondence  comprising  the  investigation  and 
handling  of  the  claim  by  the  carriers.    Such  bills  and  papers  will  be 
returned  by  the  Commission  after  the  claim  has  been  acted  upon. 

4.  When  special  reparation  is  authorized  on  a  shipment  moving 
between  two  points  under  a  certain  rate,  similar  action  will  be  taken 
by  the  Commission  on  all  subsequent  applications  covering  shipments 
of  the  same  commodity  under  the  same  rate  and  between  the  same 
points  at  the  same  or  a  subsequent  date,  without  incorporating  in 
the  subsequent  orders  a  clause  requiring  the  observance  of  the  re- 
duced rate  as  a  maximum  for  one  year.    It  is  therefore  important  in 
any  application  involving  a  rate  that  has  already  been  acted  upon, 
that  the  Commission  be  advised  of  that  fact  by  proper  reference  under 
the  space  for  Remarks. 

5.  The  Commission  will  authorize  payment  only  to  the  consignor 
or  consignee,  and  not  in  favor  of  an  assignee.     In  cases  where  the 
application  is  in  favor  of  the  person  shown  on  the  attached  shipping 
papers  to  have  directly  paid  the  freight  charges,  such  order  as  may 
be  entered  will  read  in  favor  of  that  person;  but  where  the  applica- 
tion is  for  authority  to  refund  to  the  consignee  when  the  papers  show 
that  the  charges  were  paid  by  the  consignor,  or  vice  versa,  the  Com- 
mission requires  that  a  stipulation  be  filed  with  the  application  signed 
by  the  consignor,  by  the  consignee,  and  by  an  executive  or  general 
officer  of  the  carrier  in  substantially  the  following  form : 

TITLE.     (Here  insert  names  of  complainant  and  defendants  as  in  ap- 
plication to  which  stipulation  relates.) 

The  undersigned  ,  the  consignor  of  the  following-described 

shipment   (here  insert  date,  car  number,  commodity,  and  points  of 

origin  and  destination)   and   ,  the  consignee  thereof,  and  the 

undersigned   Rail Company,  stipulate  and  agree  that 

any  order  entered  in  the  above-entitled  informal  complaint  for  a  re- 
fund on  account  of  the  excessive  freight  charges  collected  on  said 


338  FORMS — COMMISSION 

shipment  shall  be  in  favor  of  (here  insert  name  of  consignor  or  con- 
signee, as  case  may  be). 


(Signature  of  consignor.) 
(Signature  of  consignee.) 

Rail  Co. 


By 

Its 

(An  executive  or  general  officer.) 


FORMS  FOE  USE  BEFORE  THE  COURTS 


No.  12.  Bill  by  the  Commission  to  enforce  its  orders. 

No.  13.  Bill  to  enjoin,  set  aside,  and  annul  order  of  the  Commission, 

involving  a  practice. 
No.  14.  Bill  to  enjoin,  set  aside  and  annul  order  of  the  Commission, 

involving  reasonableness  of  a  rate. 
No.  14a.  Bill  to  enjoin,  set  aside,  and  annul  order  of  the  Commission, 

another  form. 

No.  14b.  Bill  to  enjoin  order  of  the  Commission,  another  form. 
No.  15.  Order  of  the  court  why  injunction  should  not  issue. 
No.  16.  Notice  of  application  for  an  order. 
No.  16a.  Notice  of  passage  of  order. 
No.  17.  Notice  of  order,  why  injunction  should  not  issue. 


No.  12. — Bill  by  Interstate  Commerce  Commission  to  enforce  its  order  * 

(CAPTION) 

To  the  Circuit  Court  of  the  United  States  sitting  within  and  for  the 
District  of  the  State  of : 

Your  petitioner,  the  Interstate  Commerce  Commission,  which  was 
created  and  established  and  now  exists  under  and  by  virtue  of  an 
act  of  the  Congress  of  the  United  States,  entitled  "An  act  to  regu- 
late commerce,"  approved  February  4,  1887,  as  amended  by  an  act  ap- 
proved March  2,  1889,  and  as  amended  by  an  act  approved  February 
10,  1891,  and  an  act  approved  February  11,  1893,  and  an  act  ap- 
proved February  19, 1903,  and  an  act  approved  June  29,  1906,  humbly 
complains  and  showeth: 


That  the  A &B Railway  Company  is  a  corporation 

chartered  and  existing  under  and  by  virtue  of  the  laws  of  the  States 

1  Petition  of  Interstate  Commerce  Commission  against  the  L.  S.  &  M.  S.  E. 
Co.,  March,  1903,  in  the  United  States  Circuit  Court  for  the  Northern  District 
of  Ohio,  Eastern  Division. 

339 


340  FORMS — COURTS 

of and and ,  having  its  principal  office  in  the 

city  of ,  in  the  State  of ;  that  the  C &  D 

Railroad  Company  is  a  corporation  chartered  and  existing  under  and 
by  virtue  of  the  laws  of  the  State  of ,  having  its  principal  of- 
fice in  the  city  of ,  in  said  State. 

II 

That  the  said  A &  B Railway   Company   and  the 

C &D Railroad  Company,  defendants  herein,  were  on, 

to  wit,  the day  of ,  190. .,  and  since  have  been  and  are, 

common  carriers  engaged  in  the  transportation  of  persons  and  prop- 
erty by  railroad  under  joint  through  rates;  and,  as  members  of  con- 
tinuous lines  between  different  points  in  the  United  States,  particu- 
larly were  and  since  have  been  so  engaged  in  the  transportation  of 

between  various  points  in  the  several  States  of  the  United 

States,  including  points  in  the  States  of and ;  and  as 

such  common  carriers  and  in  respect  to  such  transportation  were  and 
are  subject  to  the  provisions  of  the  said  act  entitled  "An  act  to  regu- 
late commerce"  and  acts  amendatory  thereof  and  supplementary 
thereto. 

Ill 

That  heretofore,  to  wit,  on  the  day  of  ,  190 . . ,  the 

M N association,  a  corporation  under  the  laws  of  the 

State  of ,  filed,  under  section  13  of  said  act  to  regulate  com- 
merce, a  petition,  and  complained  to  the  petitioner  herein,  the  Inter- 
state Commerce  Commission,  alleging  violations  on  the  part  of  the 
said  defendants  of  certain  portions  of  said  act,  as  at  large  and 
more  fully  appears  in  and  by  said  complaint  on  file  in 
the  office  of  said  Commission,  a  copy  whereof  is  hereunto  annexed  and 
made  a  part  of  this  bill  of  complaint,  marked  "Exhibit  A;"  and  that 
a  copy  of  said  complaint,  Exhibit  A  herein,  under  the  seal  of  said 
Commission,  was  duly  forwarded  by  said  Commission  to  each  of  the 
said  defendants,  as  required  by  section  13  of  said  act. 

IV 

(o)  That  thereafter,  to  wit,  on  the  day  of  ,  190. ., 

the  said  A &  B Railway  Company  filed  an  answer  to 

said  complaint,  Exhibit  A  herein,  as  at  large  and  more  fully  ap- 
pears in  and  by  said  answer  on  file  in  the  office  of  the  petitioner 
herein,  a  copy  of  which  said  answer  is  hereto  annexed  and  made  a 
part  of  this  petition,  marked  "Exhibit  B." 

(&)  (Same  allegations  as  to  other  defendants). 


FORMS — COURTS  341 


That  thereafterwards,  the  said  cause,  being  at  issue  upon  the  plead- 
ings aforesaid,  duly  came  on  for  investigation  and  hearing  before  the 

petitioner  herein,  the  Interstate  Commerce  Commission,  and  at , 

in  the  State  of ,  on  the day  of ,  190 . . ,  and  at 

(other  places  where  hearings  were  held)  the  said  M N 

association,  as  well  as  the  defendants  herein,  the  A &B 

Railway  Company  and  the  C &  D Kailroad  Company, 

duly  appeared  by  their  attorneys,  and  at  the  said  hearings  testimony 
was  taken  on  behalf  of  the  said  parties ;  that  thereafter,  to  wit,  on  the 
day  of ,  190. .,  the  said  parties  appeared  by  their  at- 
torneys in  the  city  of  Washington,  District  of  Columbia,  and  argument 
was  had  in  behalf  of  all  parties  in  interest. 

VI 

That  thereafterwards,  to  wit  on  the day  of ,  190 . . , 

the  petitioner  herein  duly  determined  the  matter  in  controversy  be- 
tween the  said  parties  before  it,  and  made  a  report  in  writing  in 
respect  thereto,  setting  forth  the  conclusions  it  had  reached  and  also 
the  findings  of  fact  upon  which  the  said  conclusions  were  based,  as 
at  large  and  more  fully  appears  in  and  by  the  report  of  said  Com- 
mission, a  copy  of  which  is  hereunto  annexed  and  made  a  part  of  this 
petition  as  ' '  Exhibit  ..." 

VII 

That  after  the  determination  of  the  said  cause,  as  aforesaid,  to  wit, 

on  the day  of ,  190. .,  the  petitioner  duly  formulated 

an  order,  which  said  order,  in  conformity  with  the  conclusions  of  this 
petitioner,  set  forth  in  its  report  (Exhibit  ..  herein),  directed  the 

said  defendant,  the  A &B Railway  Company  and  the 

C &D Railroad  Company,  to  cease  and  desist  on  or  be- 
fore the  day  of  ,  190 . . ,  from  exacting  or  charging 

certain  specified  rates  upon  the  transportation  of  property  between 
certain  points,  as  more  fully  appears  by  said  order. 

That  said  order  reads  as  follows:  (Here  set  out  in  full  the  order, 
or  refer  to  it  as  an  exhibit). 

VIII 

That  thereafter  the  petitioner,  agreeably  to  the  provisions  of  the 
law  in  that  regard,  duly  caused  a  properly  authenticated  copy  of  its 
said  opinion  (Exhibit  .  .  herein),  together  with  a  copy  of  the  order 
(Exhibit  .  .  herein)  to  be  delivered  to  each  of  the  said  defendants, 


342  FORMS — COURTS 

the   A &  B Railway   Company   and  the    C & 

D. .  Railroad  Company;  and  petitioner  shows  that  the  said  de- 
fendants, unmindful  of  their  duty  in  that  regard,  have,  through  their 
officers,  servants,  and  attorneys,  wholly  disregarded  and  set  at  naught 
said  order  of  petitioner  (Exhibit  . .  herein),  and  wilfully  and  know- 
ingly violated  and  disobeyed  the  same,  and  still  do  neglect  and  refuse 
to  comply  with  the  same  or  any  part  thereof. 

IX 

And  the  petitioner  charges  that  the  action  of  the  defendants,  hi 

exacting,  charging,  and  compelling  shippers  of  ,  between 

,  in  the  State  of ,  and  in  .......  in  the  State  of , 

are  in  violation  of  section  1  of  the  act  to  regulate  commerce,  in  that 
said  rates  are  unreasonable  and  unjust,  and  that  said  rates  are  and 
have  been  in  violation  of  section  3  of  the  said  act,  in  that  said  rates 
create  an  undue  and  unreasonable  preference  or  advantage  to  other 
descriptions  of  traffic,  and  create  an  undue  and  unreasonable  preju- 
dice and  disadvantage  to  the  transportation  of in  car  lots. 

Wherefore,  The  petitioner  prays: 

1.  That  a  subprena  or  other  suitable  process  may  issue,  according 

to  the  course  of  equity,  requiring  the  A &  B Railway 

Company  and  the  C &D Railroad  Company  to  appear 

at  such  time  and  place  as  this  honorable  court  may  determine,  then 
and  there  to  make  full,  complete,  and  perfect  answer  to  all  the  mat- 
ters and  things  hereinbefore  stated  and  charged,  as  fully  and  particu- 
larly as  if  each  of  the  said  defendants  were  severally  interrogated  in 
regard  thereto,  but  not  under  oath,  which  is  hereby  waived. 

2.  That  upon  the  filing  of  this  petition,  an  order  may  be  made  by 
this  honorable  court,  directing  the  method  of  service  of  notice  of  the 
pendency  of  this  proceeding. 

3.  That  such  order  or  orders  may  be  passed,  pending  the  cause,  as 
will  secure  a  speedy  hearing  and  determination  of  the  matters  and 
things  stated  and  charged  in  the  foregoing  petition. 

4.  That  such  order  or  orders  may  be  passed,  pending  the  cause. 
as  may  be  necessary  for  the  prosecution  of  all  such  inquiries  as  the 
Court  may  think  needful  and  lawful  to  enable  it  to  form  just  judg- 
ment in  the  matters  and  things  stated  and  charged  in  the  foregoing 
petition. 

5.  That  upon  final  hearing  a  decree  may  be  entered  granting  to 
petitioner  a  writ  of  injunction,  or  other  proper  process,  mandatory 

or  otherwise,  to  restrain  the  said  defendants,  the  A &B 

Railway  Company  and  the  C &D Railroad  Company, 

and  each  of  them,  and  their  officers,  servants,  and  agents,  from  con- 


FORMS — COURTS  343 

tinuing  in  their  violation  of  and  disobedience  to  the  said  order  of  the 
petitioner,  the  Interstate  Commerce  Commission. 

6.  That  a  decree  may  be  entered  requiring  the  defendants  (naming 
them),  and  each  of  them,  to  pay  such  sum  of  money,  not  exceeding 

the  sum  of dollars,  for  every  day  after  a  day  to  be  named  in 

such  decree  that  they  each,  respectively,  fail  to  obey  the  said  injunc- 
tion or  other  proper  process. 

7.  That  a  decree  may  be  entered  requiring  the  defendants  (naming 
them)  to  pay  the  cost  of  this  proceeding  and  reasonable  counsel  fees. 

8.  For  such  other  and  further  relief  as  to  the  court  may  seem  meet 
and  just  and  the  equities  of  the  cause  may  require. 

THE  INTERSTATE  COMMERCE  COMMISSION, 

By (The  Secretary  thereof,  thereunto  duly  authorized.} 

[SEAL.] 

E F , 

(United  States  Attorney, ,  District  of prosecut- 
ing this  suit  %  direction  of  the  Attorney-General  of  the 
United  States.) 


No.  13. — Bill  to  enjoin,  set  aside  and  annul  order  of  Commission,  in- 
volving a  practice2 

In  the  Circuit  Court  of  the  United  States  for  the  .         .  District  of 


A &  B . . . .  RAILWAY  COMPANY, 

Complainant. 

v. 

INTERSTATE  COMMERCE  COMMISSION, 
and  E....  F....  and  G....  H.... 
trading  as  F ....  &  Co., 
Defendants. 

To  the  Honorable  Judges  of  the  Circuit  Court  of  the  United  States 

for  the District  of : 

The  A B Railway  Company,  a  railroad  corporation 

duly  organized  and  existing  under  the  laws  of  the  State  of , 

and  a  citizen  of  the  State  of ,  and  having  its  principal  place  of 

business  and  its  principal  operating  office  in  the  city  of ,  State 

of ,  within  the  said  District,  brings  this  bill  against  the  Inter- 
state Commerce  Commission,  duly  constituted,  organized  and  exist- 
ing under  and  by  virtue  of  an  act  of  Congress  entitled  "An  act  to 
regulate  commerce,"  approved  February  4, 1887,  and  the  acts  amenda- 

2  Adapted  from  the  D.  L.  &  W.  E.  Co.  v.  I.  C.  C.,  in  the  Circuit  Court  of  the 
United  States  for  the  Southern  District  of  New  York,  June,  1907. 


344  FORMS — COURTS 

tory  thereof  and  supplementary  thereto,  and  especially  the  act  of 
June  29,  1906,  and  E F and  G H ,  copart- 
ners doing  business  under  the  firm  name  and  style  of  F & 

Company,  citizens  of  the  County  of ,  State  of 

And  thereupon  your  orator  complains  and  says,  that  your  orator 
is  and  was  at  all  times  hereinafter  mentioned,  a  railroad  corporation 
duly  created  by  and  organized  and  existing  under  the  laws  of  the 

State  of and  is  and  was  at  all  said  times  a  citizen  of  said  State 

and  a  common  carrier  engaged  in  interstate  commerce  and  in  commerce 
with  the  States  of  and in  the  transportation  of  pas- 
sengers and  property  by  railroad  between  (terminus)  in  the 

State  of and ;    (terminus)  in  the  State  of ,  and 

between  points  in  the  State  of  and  points  in  the  States  of 

and 

That  the  defendants  E F and  G H were 

at  all  of  the  times  herein  mentioned,  and  now  are,  copartners  in  trade, 

doing  business  under  the  firm  name  of  F &  Company,  having 

their  principal  office  and  place  of  business  at ,  in  the  State  of 

,  and  are  engaged  in  the  sale  of That  said  F & 

Company  now  have,  and  at  all  times  herein  mentioned  did  have  and 
maintain  at  the  said  place  (describe  the  particular  place),  a  plant  for 

the  purpose  of ;  that  the  said  copartners  established  the  said 

business  at  the  place  aforesaid  in  the  year   ,  and  have  since 

and  down  to  the  present  time  continued  the  same.  That  each  of  said 
persons  is  and  was  at  the  times  herein  mentioned  a  citizen  and  resi- 
dent of  the  city  of ,  State  of 

(Then  set  out  such  matters  in  connection  with  the  particular  con- 
troversy, concerning  the  customs  of  the  complainant  and  of  the  de- 
fendants and  other  users  of  transportation  facilities,  as  may  be  ap- 
propriate in  the  case.) 

And  your  orator  further  avers  that  on  or  about  the day  of 

,  190. .,  the  said  defendants,  F '  &  Company,  duly  filed 

with  the  Interstate  Commerce  Commission  at  Washington,  D.  C., 
their  petition  in  writing,  a  copy  of  which  is  hereto  attached  and  is 
hereby  referred  to  and  made  a  part  hereof.  That  in  and  by  said  pe- 
tition, as  will  more  fully  appear  thereby,  the  said  defendants,  F 

&  Company,  pray  that  your  orator  be  required  to  (state  relief  prayed 
for  and  granted). 

That  thereafter,  and  on  the day  of ,  19 . . ,  upon  the 

said  petition,  the  said  Interstate  Commerce  Commission  required  your 

orator  to  satisfy  the  complaint  of  the  said  defendants,  F & 

Company,  hereinabove  referred  to,  or  to  answer  the  same  in  writing 

within days  from  the  date  of  said  order ;  that  thereafter  your 

orator  duly  filed  and  served  its  answer  to  the  said  petition,  a  copy 


FORMS — COURTS  345 

of  which  answer  is  hereto  attached  and  hereby  referred  to  and  made 
a  part  hereof;  that  thereafter  the  issue  joined  by  the  said  petition 
and  the  answer  was  assigned  for  hearing  before  the  said  Commission 

on  the   day  of  ,  19 . . ;  that  the  said  hearing  was  had 

and  the  proofs  of  the  parties  taken;  whereupon,  after  hearing  argu- 
ments of  counsel,  and  on  the day  of ,  190 . . ,  said  de- 
fendant, the  Interstate  Commerce  Commission,  notwithstanding  that 
the  facts  hereinbefore  related  were  proved  and  established  at  said  hear- 
ing, made  and  filed  the  report  and  order  of  the  Commission,  in  and 
by  which  the  said  Interstate  Commerce  Commission  ordered : 
(Quote  order  issued  by  the  Commission.) 

That  a  certified  copy  of  the  said  report  and  order  was  thereafter, 

on  or  about  the ,  day  of ,  served  upon  your  orator  both 

by  the  Interstate  Commerce  Commission  and  by  the  said  defendants, 

F &  Company.    That  attached  to  the  order  served  upon  your 

orator  by  the  said  F &  Company  was  a  notice  to  the  effect  that 

it  demanded  of  your  orator  that  he  comply  with  the  terms  and  pro- 
visions of  the  said  order  on  or  before  the day  of (date 

named  in  the  order  for  its  taking  effect),  a  copy  of  which  said  re- 
port and  order  is  hereto  attached  and  hereby  referred  to  and  made 
a  part  hereof. 

And  your  orator  further  avers  that  the  said  defendant,  the  Inter- 
state Commerce  Commission,  and  the  said  defendants,  F & 

Company,  intend  to  enforce  the  provisions  of  the  said  order,  dated  on 

the day  of ,  190 . . ,  hereinbefore  referred  to,  either  by 

mandamus  or  by  writ  of  injunction,  as  provided  in  the  said  act  to  reg- 
ulate commerce,  hereinbefore  referred  to,  provided  your  orator  does 
not  by  the day  of ,  comply  with  the  terms  thereof. 

And  your  orator  further  avers  that  the  said  order,  as  made  and  filed 
by  the  Interstate  Commerce  Commission,  as  aforesaid,  is  illegal,  null, 
and  void,  and  that  the  defendant,  the  Interstate  Commerce  Commis- 
sion, had  no  jurisdiction,  power,  or  authority  of  law  to  make  the 
same;  (then  may  be  set  out  the  peculiar  features  of  the  particular 
case,  as  far  as  the  parties  complainant  before  the  Commission  are 
concerned).  That  the  said  defendant,  the  Interstate  Commerce  Com- 
mission, is  constituted,  organized,  and  existing  under  the  said  acts 
of  Congress  hereinbefore  referred  to,  and  that  it  has  no  power  or  au- 
thority other  than  that  given  and  conferred  upon  it  by  said  acts. 

That  the  said  order  imposes  an  unjust,  unreasonable,  and  illegal  re- 
striction upon  interstate  commerce  and  upon  the  right  to  the  use, 
control,  and  management  of  its  business,  which  your  orator  has  and 
should  have  and  enjoy,  against  which  it  has  no  adequate  remedy  at 
law. 

Your  orator  therefore  prays  that  a  writ  of  injunction,  both  tern- 


346  FORMS — COURTS 

porarily  and  permanently,  may  issue  out  of  this  court,  directed  to  the 
defendants,  enjoining  them,  and  each  of  them,  both  permanently  and 
during  the  pendency  of  this  action,  and  until  the  further  order  of 
the  Court  herein,  from  in  any  manner  enforcing  or  attempting  to  en- 
force the  said  order  of  the  Interstate  Commerce  Commission,  dated  the 

day  of ,  hereinbefore  referred  to,  and  from  beginning 

or  attempting  to  begin  any  action  or  proceeding  for  the  purpose  of 
enforcing  or  attempting  to  enforce  the  said  order,  or  of  compelling 
or  obliging  your  orator  to  allow  or  permit  those  things  commanded  in 
the  order  to  be  permitted. 

And  that  a  decree  be  granted  herein,  setting  aside,  declaring  null 
and  void  the  order  of  the  defendant,  the  Interstate  Commerce  Com- 
mission, made  and  filed  against  your  orator  on  the  day  of 

,  190 . . ,  and  for  such  further  or  different  relief  as  to  the  court 

may  seem  just  and  equitable,  together  with  the  costs  of  this  action. 

To  the  end,  therefore,  that  the  defendants  may,  if  they  can  show 
why  your  orator  should  not  have  the  relief  hereby  prayed,  full  true, 
direct,  and  perfect  answer  make,  according  to  the  best  of  the  knowl- 
edge, remembrance,  information,  and  belief  of  the  proper  members 

of  the  said  defendant  Commission  and  of  the  said  defendants,  F 

&  Company,  but  not  under  oath  (answer  under  oath  being  hereby  ex- 
pressly waived),  to  the  several  matters  herein  charged,  as  full  and 
particularly  as  if  the  same  were  here  repeated  and  the  defendants 
especially  interrogated  as  to  each  and  every  of  such  matters. 

May  it  please  your  honors  to  grant  unto  your  orator  a  writ  of  sub- 
poena and  respondendum,  issuing  out  of  and  under  the  seal  of  this 
honorable  Court,  directed  to  the  said  defendants,  the  Interstate  Com- 
merce Commission,  and  said  F &  Company,  commanding  them, 

by  a  day  certain  and  under  a  certain  penalty,  to  be  and  appear  in  this 
honorable  Court,  then  and  there  to  answer  to  the  premises  and  to 
stand  and  abide  by  such  order  and  decree  as  may  be  made  against 
them. 

A &B BAIL  WAY  COMPANY, 

W V ,  General  Attorney. 

[SEAL] 

M N , 

Solicitor  for  Complainant. 


(Address) 

(Usual  jurat). 

Exhibits:    1,  Original  petition;  2,  certified  copy  of  order. 


FORMS — COURTS  347 

No.  14. — Bill  to  enjoin,  set  aside  and  annul  an  order  of  Commission, 
involving  a  reasonable  rate3 

(CAPTION) 
Address: 

A B ,    a   citizen   of  the    State   of    ,    G 

H ,  a  corporation  organized  under  the  laws  of  the  State  of 

and  (naming  other  complainants)  bring  this  their  bill  against 

the  Interstate  Commerce  Commission,  established  and  existing  under 
and  by  virtue  of  an  act  of  Congress  of  the  United  States.  And  there- 
upon your  orators  complain  and  say : 

That  on  the   day  of ,  19 . . ,  in  a  certain  cause  then 

pending  in  the  Circuit  Court  of  the  United  States  within  and  for  the 

District  of   ,  wherein  J K and  the  others  were 

complainants  and  the    Railway   Company  were  defendants, 

after  due  proceedings  having  been  had  for  that  purpose  in  all  re- 
spects in  accordance  with  law,  your  orator,  A B was 

duly  appointed  receiver  of  the  road,  and  was  duly  qualified 

as  such  receiver,  and  is  now,  as  such  receiver,  in  possession  of  the 

railway  properties  of  the road,  and  is  now  operating  the  same 

as  such  receiver ;  that  the  Gr H Railway  Company  is  a 

corporation  duly  organized  under  and  by  virtue  of  the  laws  of  the 
State  of  ......   (describe  other  complainants  in  the  same  way)  ;  that 

the  defendant,  the  Interstate  Commerce  Commission,  has  been  created 
and  established,  and,  during  all  the  times  herein  mentioned,  has 
existed  under  and  by  virtue  of  an  act  of  Congress  entitled  "An  act 
to  regulate  commerce, ' '  approved  February  4,  1887,  and  acts  amenda- 
tory thereof. 

Your  orators  further  aver  that  your  orator,  A B ,  as 

receiver,  as  aforesaid,  have  their  principal  operating  office  in  the 

city  of ,  in  the  State  of ,  and  that  said  road  is  engaged 

in  interstate  commerce,  transporting  passengers  and  property  between 
and  among  the  States  of , ,  and 

(Then  set  out  the  particular  facts  applicable  to  the  pending  mat- 
ter). 

Your  orators  further  aver  that  they  have  established  and  duly 
filed,  published,  and  posted,  according  to  law,  tariffs  of  charges  for 
the  transportation  of ,  some  of  the  rates  being  for  the  trans- 
portation of entirely  upon  the  lines  of  the  company  issuing 

said  tariff,  and  a  large  number  of  other  tariffs  being  joint  tariffs  is- 
sued by  your  orators  in  connection  with  other  companies. 

(Then  set  out  historically  the  essential  facts  leading  up  to  the  filing 
of  the  petition  by  the  original  complainants). 

•Adapted  from  A.  B.  Stickney  v.  I.  C.  C.,  in  the  Circuit  Court  of  the  United 
States  within  and  for  the  District  of  Minnesota,  May,  1908. 


348  FORMS — COURTS 

(Set  up  the  filing  of  the  petition  by  the  original  complainants  and 
the  making  and  serving  of  the  order  by  the  Interstate  Commerce 
Commission). 

(Allege  that  the  order,  is  unreasonable,  unjust,  oppressive,  and 
unlawful,  and  the  reasons  therefor). 

(That  the  enforcement  of  the  order  would  compel  the  complainants 
to  perform  a  service  without  adequate  remuneration,  or  at  a  loss). 

(It  may  be  alleged  that  the  enforcement  of  the  order  would  lead 
to  very  many  suits  for  penalties  by  persons  interested  in  the  order  in 
many  of  the  judicial  districts  of  the  United  States,  by  which  multi- 
plicity of  suits  much  loss  and  damage  would  be  inflicted  upon  com- 
plainants and  embarrass  them  in  their  business). 

(That  the  Interstate  Commerce  Commission,  unless  the  operation  of 
the  order  is  enjoined  or  suspended,  will  institute  judicial  proceedings 
for  the  recovery  of  the  penalties). 

(Prayer  for  temporary  or  interlocutory  order  suspending  the  order 
of  the  Commission  and  restraining  it  from  instituting  proceedings  to 
enforce  the  order,  and  for  a  permanent  injunction  upon  final  hear- 
ing). 

(Prayer  for  general  relief  and  subpoena). 

(Signatures  of  Complainants.) 


(Usual  verification). 


(Name  of  Counsel) 
(Address) 


No.  14a. — Bill  to  enjoin,  set  aside  and  annul  an  order  of  the  Commis- 
sion * 

(CAPTION) 
Address: 

Northern  Pacific  Railway  Company,  a  corporation  organized  under 
the  laws  of  the  State  of  Minnesota;  Chicago,  Burlington  and  Quincy 
Railroad  Company,  a  corporation  organized  under  the  laws  of  the 
State  of  Illinois;  Union  Pacific  Railroad  Company,  a  corporation  or- 
ganized under  the  laws  of  the  State  of  Utah ;  Oregon  Short  Line  Rail- 
road Company,  a  corporation  organized  under  the  laws  of  the  State 
of  Utah,  and  Oregon  Railroad  &  Navigation  Company,  a  corporation 
organized  under  the  laws  of  Oregon,  bring  this,  their  amended  bill, 
against  the  Interstate  Commerce  Commission,  established  and  exist- 
ing under  and  by  virtue  of  an  act  of  the  Congress  of  the  United 
States. 

"Amended  bill  of  complaint  in  N.  P.  E.  Co.  v.  I.  C.  C.,  Circuit  Court,  Minne- 
sota (Equity  No.  884),  October  20,  1908. 


FORMS — COURTS  349 

And  thereupon  your  orators  complain  and  say : 

I 

That  the  Northern  Pacific  Railway  Company  is  a  corporation  duly 
organized  and  existing  under  and  by  virtue  of  the  laws  of  the  State 
of  Wisconsin;  that  the  Great  Northern  Railway  Company  is  a  cor- 
poration duly  organized  and  existing  under  the  laws  of  the  State  of 
Minnesota;  that  the  Chicago,  Burlington  and  Quincy  Railroad  Com- 
pany is  a  corporation  duly  organized  and  existing  under  the  laws  of 
the  State  of  Illinois;  that  the  Union  Pacific  Railroad  Company  is  a 
corporation  duly  organized  and  existing  under  the  laws  of  the  State 
of  Utah ;  that  the  Oregon  Short  Line  Railroad  Company  is  a  corpora- 
tion duly  organized  and  existing  under  the  laws  of  the  State  of  Utah, 
and  that  the  Oregon  Railroad  and  Navigation  Company  is  a  corpora- 
tion duly  organized  and  existing  under  the  laws  of  the  State  of  Ore- 
gon; that  the  defendant,  the  Interstate  Commerce  Commission,  has 
been  created  and  established,  and  during  all  the  times  herein  men- 
tioned has  existed,  under  and  by  virtue  of  an  act  of  the  Congress  of 
the  United  States  entitled  ''An  act  to  regulate  commerce,"  approved 
February  4,  1887,  and  the  acts  amendatory  thereof. 

Your  orators  further  show  that  the  Northern  Pacific  Railway  Com- 
pany has  its  principal  operating  office  in  the  city  of  St.  Paul  in  the 
district  of  Minnesota,  third  division  thereof. 

II 

Your  orators  further  show  that  the  Northern  Pacific  Railway  Com- 
pany, Great  Northern  Railway  Company,  Chicago,  Burlington  and 
Quincy  Railroad  Company,  Union  Pacific  Railroad  Company,  Ore- 
gon Short  Line  Railroad  Company  and  Oregon  Railroad  and  Naviga- 
tion Company  are  each  common  carriers,  engaged  in  the  transporta- 
tion of  property  by  railroad,  by  continuous  carriage  or  shipment,  from 
points  in  the  State  of  Washington  to  points  in  the  States  of  Montana, 
North  Dakota,  South  Dakota,  Minnesota,  Wisconsin,  Illinois,  Iowa, 
Missouri,  Kansas,  Nebraska,  Utah,  and  Colorado,  and  have  been  so 
engaged  for  many  years  past,  and  a  large  proportion  of  the  property 
so  transported  by  your  orators  is  and  has  been  lumber,  shingles,  and 
other  forest  products  produced  at  points  in  the  State  of  Washington. 
That  for  the  purpose  of  transporting  the  lumber,  shingles  and  other 
forest  products  so  produced  in  the  State  of  Washington,  to  points  of 
consumption  in  the  States  above  named,  your  orators  have  establish- 
ed and  maintained  through  routes  and  joint  rates  over  their  lines  and 
the  lines  of  connecting  railways  from  said  points  in  the  State  of 
Washington  to  destination  in  said  other  States. 


350  FORMS — COURTS 

III 

The  rates  for  the  transportation  of  lumber,  shingles  and  forest  pro- 
ducts from  points  in  the  State  of  Washington  over  the  lines  of  your 
orators'  railways  to  points  thereon  in  the  States  above  mentioned  and 
to  points  in  said  States  and  other  States  over  lines  of  connecting  rail- 
ways, which  rates  were  in  effect  on  October  31,  1907,  and  which  had 
been  in  effect  for  a  long  time  before  that  date,  were  prescribed  in  cer- 
tain tariffs  duly  filed,  published,  and  posted  under  the  provisions  of 
the  act  entitled  "An  act  to  regulate  commerce."  These  tariffs  are 
known  and  described  as  follows:  S.  R.  662,  I.  C.  C.  No.  564;  G.  N. 
G.  F.  O.  9838,  I.  C.  C.  No.  A-1101;  G.  N.  G.  F.  0.  13051,  I.  C.  C.  No. 
A-1427 ;  G.  N.  G.  F.  O.  17526,  I.  C.  C.  No.  A-2231 ;  G.  N.  G.  F.  0. 
18025,  I.  C.  C.  No.  A-2427;  G.  N.  G.  F.  O.  18837,  I.  C.  C.  No.  A-2661; 
Northern  Pacific  No.  23275,  I.  C.  C.  No.  A-3095  and  Northern 
Pacific  No.  20285,  I.  C.  C.  No.  B-479,  and  are  too  voluminous  to  be 
set  out  in  this  amended  bill  of  complaint,  but  true  copies  thereof  have 
been  filed  with  the  original  bill  of  complaint  in  this  cause,  and  refer- 
ence thereto  is  hereby  prayed  as  if  the  same  were  made  a  part  of  this 
amended  bill  of  complaint,  the  said  tariffs  being  marked  respectively 
exhibits  1  to  8  inclusive. 

IV 

* 

That  more  than  thirty  days  previous  to  Nov.  1,  1907,  your  orators, 
together  with  a  large  number  of  other  carriers,  filed,  published  and 
posted,  in  accordance  with  the  provisions  of  that  certain  act  of  Con- 
gress, entitled  'An  act  to  regulate  commerce/  approved  February  4, 
1887,  and  the  acts  amendatory  thereof,  a  certain  tariff  known  as 
'Transcontinental  Freight  Bureau  Eastbound  Special  Tariff  No.  S. 
R.  963,  I.  C.  C.  No.  850,'  with  supplements  1  and  2,  which  became 
effective  Nov.  1,  1907,  wherein  rates  were  prescribed  for  the  trans- 
portation of  lumber,  shingles  and  forest  products  from  points  in  the 
State  of  Washington  to  points  in  North  Dakota,  South  Dakota,  Mon- 
tana, Minnesota,  Wisconsin,  Iowa,  Illinois,  Missouri,  Nebraska,  Ar- 
kansas, Louisiana.  Texas,  Oklahoma,  New  Mexico,  Colorado,  Kansas. 
Utah  and  Wyoming,  and  at  or  about  the  same  time,  your  orator,  Great 
Northern  Railway  Company,  filed,  published  and  posted,  under  the 
provisions  of  said  act  of  Congress,  a  certain  local  and  joint  tariff 
known  as  Great  Northern  I.  C.  C.  No.  A-2667,  which  prescribed  the 
rates  for  the  transportation  of  lumber,  shingles  and  forest  products 
from  points  in  the  State  of  Washington  to  points  in  Oregon,  Washing- 
ton, Idaho,  Montana,  Alberta,  and  British  Columbia,  which  said  tar- 
iff, and  the  rates  therein  prescribed,  became  effective  on  November  1, 
1907.  And  at  or  about  the  same  time  your  orator,  Northern  Pacific 
Railway  Company,  filed,  published  and  posted  a  certain  local  and 


FORMS — COURTS  351 

joint  tariff  prescribing  rates  for  the  transportation  of  lumber,  shin- 
gles, and  forest  products  from  points  in  the  States  of  Washington  to 
points  in  Idaho,  Montana,  and  North  Dakota,  which  rates  became 
effective  on  November  2,  1907,  said  tariff  being  I.  C.  C.  No.  A-3432. 

That  said  tariffs  above  described  are  too  voluminous  to  be  set  out  in 
this  amended  bill  of  complaint;  that  true  copies  thereof  have  been 
filed  with  the  original  bill  of  complaint  in  this  cause,  and  reference 
thereto  is  hereby  prayed,  as  if  the  same  were  made  a  part  of  this 
amended  bill  of  complaint,  the  said  tariff  I.  C.  C.  No.  850  being  mark- 
ed "Exhibit  9,"  the  said  tariff  I.  C.  C.  No.  A-2667  being  marked  "Ex- 
hibit 10,"  and  the  said  tariff  I.  C.  C.  No.  A-3432  being  marked  "Ex- 
hibit 11." 

That  in  and  by  said  tariffs  so  filed,  published,  and  posted,  the  arti- 
cles or  commodities  therein  described  were  designated  as  groups  A, 
B.  C.  and  D,  and  by  the  terms  thereof  Group  A  comprised  shingles, 
Group  B  comprised  lumber,  poles,  piling  and  timbers  of  cedar  of 
single  car  lengths  and  certain  articles  manufactured  from  cedar, 
Group  C  comprised  lumber,  poles,  piling,  and  timbers  of  fir,  hem- 
lock, larch,  pine,  and  spruce  of  single  car  lengths  and  certain  articles 
manufactured  therefrom,  and  Group  D  comprised  long  timbers,  poles, 
piling,  or  lumber  requiring  two  or  more  cars  for  transportation. 


That  the  rates  named  in  said  tariffs  so  filed,  published,  and  posted 
thereupon  became,  were,  and  are  the  only  lawful  rates  for  the  trans- 
portation of  the  various  commodities  comprised  within  said  four 
groups  from  each  and  all  of  the  points  in  the  State  of  Washington 
named  in  said  tariffs  to  each  and  all  of  the  points  of  destination  in 
said  other  States  named  in  said  tariffs,  and  said  rates,  and  each  and 
all  of  them,  were,  on  November  1,  1907,  ever  since  have  been  and  now 
are  low  for  the  service  rendered  and  by  comparison  with  other  rates, 
and  as  such  neither  unreasonable  nor  unjust,  and,  as  your  orators 
verily  believe,  will  continue  so  to  be  for  the  period  of  two  years  from 
October  15,  1908. 

VI 

That  as  soon  as  the  said  rates  prescribed  by  the  tariffs  above  men- 
tioned become  effective,  two  certain  proceedings  were  commenced  be- 
fore the  Interstate  Commerce  Commission,  one  entitled  ' '  Pacific  Coast 
Lumber  Manufacturers'  Association  and  Others  v.  Northern  Pacific 
Railway  Company  and  Others,"  being  cause  No.  1329  before  said 
Commission,  and  the  other  entitled  "Southwest  Washington  Lum- 
ber Manufacturers'  Association  v.  Northern  Pacific  Railway  Company 
and  Others,"  being  cause  No.  1335.  In  said  cause  No.  1329,  the 


352  FORMS — COURTS 

Pacific  Coast  Lumber  Manufacturers'  Association  and  others  com- 
plained against  your  orators  and  other  carriers'  parties  to  said  tariffs, 
and  in  cause  No.  1335,  the  Southwest  Washington  Lumber  Manufac- 
turers' Association  complained  against  your  orators  and  other  car- 
riers, parties  to  said  tariffs,  and  the  complainants  in  both  of  said 
causes  alleged  that  they  were  engaged  in  the  manufacture  and  inter- 
state shipment  and  sale  of  lumber,  shingles,  and  other  forest  pro- 
ducts from  points  within  to  points  without  the  State  of  Washington, 
the  rates  on  which  were  fixed  by  said  tariffs,  and  alleged  that  the 
rates  fixed  therein  for  the  transportation  of  such  commodities  were 
unreasonable  and  unjust.  Upon  the  filing  of  the  complaints  in  said 
two  causes,  the  defendant  Interstate  Commerce  Commission  required 
your  orators,  and  the  other  carriers  named  as  defendants  in  said 
proceedings,  to  answer  the  complaints  of  said  complainants,  and 
thereupon  answers  were  duly  filed  by  your  orators,  and  upon  the  is- 
sues raised  therein  evidence  was  produced  before  the  said  Interstate 
Commerce  Commission  by  such  complainants  and  by  your  orators, 
and  the  matters  in  difference  in  said  two  causes  were  submitted  to  the 
Commission  on  March  20,  1908. 

VII 

Thereafter,  and  on  June  2,  1908,  the  defendant  Interstate  Com- 
merce Commission  entered  an  order  in  said  cause  No,  1329,  and  in  said 
cause  No.  1335.  (The  orders  of  the  Commission  are  then  set  out.) 

XII 

Your  orators  further  show  that  the  effect  of  the  orders  so  entered 
by  the  defendant  in  said  causes  1329  and  1335,  if  enforced,  will  be  to 
reduce  the  rates  fixed  by  the  tariffs  of  your  orators  for  the  transporta- 
tion of  lumber,  shingles,  and  forest  products,  from  points  within  the 
State  of  Washington  to  points  in  the  other  States  above  mentioned, 
substantially  five  (5  c.)  cents  a  hundred  pounds,  and  in  some  instances 
more  than  five  (5  c.)  cents  a  hundred  pounds. 

XIII 

Your  orators  aver  and  charge  that  in  making  said  order  and  en- 
deavoring to  establish  said  rates,  said  Commission  acted  without  war- 
rant of  law;  that  the  said  act  of  1887  to  regulate  commerce,  and  the 
several  acts  amendatory  thereof  and  supplementary  thereto,  particu- 
larly the  amendment  of  June  29,  1906,  under  which  said  Commis- 
sion professed  to  act,  are  in  violation  of  the  Constitution  of  the 
United  States  in  that  they  profess  to  confer  upon  said  Commission 
executive,  legislative,  and  judicial  powers.  More  specially  pleading  in 
this  behalf  your  orators  say:  All  through  said  acts  administrative 


FORMS — COURTS  353 

powers  are  conferred  upon  the  Commission.  In  section  15  the  Com- 
mission is  authorized  to  act  as  a  court,  to  take  judicial  cognizance  of 
complaints  filed  for  damages,  and  after  hearing  to  award  damages, 
which  no  carrier  against  whom  the  award  has  been  made  can  resist 
except  by  assuming  the  burden  of  proof  and  overthrowing  the  prima 
facie  effect  of  the  Commission's  award.  The  award  can  be  resisted 
only  under  penalty  of  the  carriers  paying  not  only  the  usual  costs  of 
suit,  but  an  attorney's  fee  to  complainant  in  addition. 

By  section  15  of  the  said  act,  said  Commission  is  authorized  and 
empowered,  after  a  hearing  upon  complaint,  whenever  in  its  opinion 
any  rate  or  charge  demanded,  charged  or  collected  by  any  carrier 
subject  to  the  act  is  unjust  or  unreasonable,  or  unjustly  discrimina- 
tory, or  unduly  preferential  or  prejudicial,  to  determine  and  pre- 
scribe what  will  be  the  just  and  reasonable  rate  or  charge  to  be  there- 
after observed  in  such  case  as  the  maximum  to  be  charged,  and  to 
make  an  order  that  the  carrier  shall  cease  and  desist  from  demanding, 
charging,  or  collecting  the  rate  or  charge  complained  of  and  con- 
demned by  said  Commission,  and  shall  not,  thereafter  for  a  period 
not  exceeding  two  years,  publish,  demand,  or  collect  any  rate  or 
charge  in  excess  of  the  maximum  rate  or  charge  so  prescribed  by  said 
Commission  as  a  substitute  for  the  rate  or  charge  condemned. 

Under  the  provisions  of  said  section  and  of  section  13  of  the  act, 
in  which  the  complaint  containing  a  statement  of  the  charges  made 
is  more  particularly  provided  for,  the  Commission  is  empowered  to 
proceed,  and  the  proceeding  itself  is  against  the  particular  carrier 
or  carriers,  and  such  carrier  or  carriers  only  as  are  charged  with  un- 
reasonableness in  the  matter  of  its  or  their  rates;  and  upon  hearing 
and  trial  of  such  carrier  or  carriers  in  said  proceeding,  the  said  Com- 
mission, under  the  aforesaid  sections,  is  authorized  to  adjudge  the 
rate  or  charge  of  said  particular  carrier  or  carriers  to  be  unreasonable, 
and  as  a  consequence  thereof  to  adjudge  against  said  particular  car- 
rier or  carriers  another  different  and  lower  rate  as  the  maximum  to 
be  charged  by  such  particular  carrier  or  carriers  in  such  case,  for  a 
period  not  exceeding  two  years.  Such  proceedings,  hearing,  trial, 
determination,  and  judgment  involve  and  require  the  exercise  of 
judicial  power  by  the  said  Commission,  and  it  is  not  competent  for 
Congress  to  invest  said  Commission  with  such  power;  and  any  in- 
vestiture, distribution,  or  exercise  of  such  power  in,  to  or  by  said 
Commission  is  in  violation  of  the  Constitution  of  the  United  States, 
and  particularly  so  much  thereof  as  provides  for  the  distribution  and 
exercise  of  the  judicial  authority  of  the  United  States;  and  herein 
reference  is  made  to  section  1  of  Article  III  of  the  Constitution  of 
the  United  States;  and  the  Commission  has  and  possesses  no  such 
judicial  power. 


354  FORMS — COURTS 

Further  pleading  as  to  that  provision  of  section  15  of  the  act  to 
regulate  commerce  as  amended,  which  declares  that  the  Commission 
shall  prescribe  what  shall  be  the  reasonable  rate  or  rates,  charge  or 
charges,  to  be  observed  as  the  maximum  to  be  charged,  your  orators 
say  this  provision  is  contrary  to  the  Constitution  of  the  United  States, 
and  especially  to  section  1,  article  I,  above  quoted,  in  that,  by  that 
article  all  legislative  power  is  confined  to  the  Congress  of  the  United 
States.  The  prescribing  of  a  maximum  rate  which  carriers  may 
charge  is  a  legislative  function.  Congress  has  not  prescribed  for,  but 
by  said  act  delegates  this  power  to  the  Commission,  and  in  doing  so 
places  in  its  hands  legislative  power. 

XIV 

Your  orators  aver  that  in  and  by  section  1  of  the  said  act  to  regu- 
late commerce  it  is  provided  that  all  charges  made  by  any  common 
carrier  subject  to  the  act,  for  any  service  rendered  or  to  be  rendered 
in  the  transportation  of  property,  or  in  connection  therewith,  shall 
be  just  and  reasonable,  and  every  unjust  and  unreasonable  charge 
for  such  service  is  prohibited  and  declared  to  be  unlawful.  That  your 
orators,  as  the  owners  and  operators  of  the  railroads  herein  above  de- 
scribed, and  the  franchises,  equipment,  and  appurtenances  connected 
with  such  railroads,  are  entitled  to  the  possession,  management,  and 
beneficial  use  thereof,  and  are  authorized  to  establish  rates  for  the 
transportation  of  freight  thereover,  subject  only  to  the  provision  that 
such  rates  shall  be  just  and  reasonable.  In  and  by  section  15  of  the 
said  act,  the  Interstate  Commerce  Commission  is  authorized  and  em- 
powered, after  hearing  upon  complaint,  whenever  it  shall  be  of  the 
opinion  that  any  of  the  rates  or  charges  demanded  or  charged  or 
collected  by  any  common  carrier  for  the  transportation  of  property 
as  defined  in  the  first  section  of  the  act  are  unjust  or  unreasonable  or 
otherwise  in  violation  of  any  of  the  provisions  of  the  act  to  determine 
and  prescribe  what  will  be  a  just  and  reasonable  rate  or  rates,  charge 
or  charges,  to  be  thereafter  observed  in  such  case  as  the  maximum 
to  be  charged,  and  to  make  an  order  that  the  carriers  shall  cease  and 
desist  from  such  violation  to  the  extent  that  the  Commission  find  the 
same  to  exist,  and  shall  not  thereafter  publish,  demand  or  collect  any 
rate  or  charge  for  such  transportation  in  excess  of  the  maximum  rate 
or  charge  so  prescribed.  That  in  and  by  said  section  15  of  said  act 
it  is  provided  that  all  orders  of  the  Commission  prescribing  rates 
shall  take  effect  within  a  reasonable  time,  and  not  less  than  thirty 
days  after  the  making  of  the  same,  and  shall  continue  in  force  for 
such  period,  not  exceeding  two  years,  as  established  and  prescribed  by 
the  order  of  the  Commission,  unless  the  same  shall  be  suspended  or 
modified  or  set  aside  by  the  Commissioners,  or  be  suspended  or  set 


FORMS — COURTS  355 

aside  by  a  court  of  competent  jurisdiction.  That  in  and  by  the 
sixteenth  section  of  the  said  act  it  is  provided  that  any  carrier  or  any 
officer  or  agent  of  any  carrier,  who  knowingly  fails  or  neglects  to 
obey  any  order  of  the  Commission  prescribing  rates  as  provided  in  said 
section  of  the  act,  shall  forfeit  to  the  United  States  the  sum  of  $5,000 
for  each  offense,  and  each  distinct  violation  shall  be  deemed  a  separate 
offense,  and  in  case  of  continuing  violation,  each  day  shall  be  deemed 
a  separate  offense. 

Your  orators  aver  that  the  present  rates  attempted  to  be  set  aside 
by  said  order,  but  fixed  and  established  by  your  orators  for  the  trans- 
portation of  lumber,  shingles,  and  other  forest  products  from  points 
aforesaid  mentioned  in  the  order  of  the  said  Commission,  and  each 
of  the  said  rates,  are  and  will  be  for  more  than  three  years  hence, 
low,  just,  and  reasonable  rates  for  the  service  performed  in  the  trans- 
portation of  said  commodities  between  said  places  and  each  of  them, 
and  that  the  rates  prescribed  by  the  Commission  in  and  by  its  order, 
are,  and  each  of  said  rates  is  and  will  be  for  more  than  three  years 
hence,  unjust  and  unreasonable  for  the  service  performed  in  the  trans- 
portation of  lumber,  shingles,  and  other  forest  products  and  are  and 
will  be  inadequate  compensation  to  your  orators  for  the  service  ren- 
dered. 

Your  orators  aver  that  by  Article  V  of  the  amendments  to  the  Con- 
stitution of  the  United  States  your  orators  have  the  right  to  a  judicial 
investigation  in  a  court  by  due  process  of  law,  under  the  forms  and 
with  the  machinery  provided  by  the  wisdom  of  successive  ages  for  the 
investigation  judicially  of  the  truth  of  the  matter  in  controversy  of 
the  question  as  to  the  reasonableness  of  the  said  rates  so  fixed  and 
established  by  your  orators,  and  of  the  question  as  to  the  reasonable- 
ness of  the  said  rates  so  fixed  and  established  by  the  said  Commission 
as  aforesaid,  and  of  each  of  said  questions. 

That  the  attempt  of  the  Commission  in  and  by  said  order  sought  to 
be  set  aside  herein,  to  set  aside  and  annul  the  rates  established  by 
your  orators,  and  the  establishing  of  the  said  rates  prescribed  by  said 
orders  and  each  of  them  by  the  said  Commission,  against  the  will  of 
your  orators  was  pro  tanto  the  taking  of  the  property  of  your  orators 
and  depriving  your  orators  thereof  without  due  process  of  law,  in 
violation  of  Article  V  of  the  amendments  to  the  Constitution  of  the 
United  States ;  and  that  the  making  of  the  said  order  of  the  Commis- 
sion herein  set  out  was  pro  tanto  a  taking  and  depriving  the  company 
of  its  property  without  due  process  of  law,  in  violation  of  Article  Y 
of  the  amendments  to  the  Constitution  of  the  United  States,  and  there- 
by void  and  of  no  effect. 

Your  orators  further  aver  that  the  attempt  of  sections  15  and  16 
of  the  said  interstate  commerce  act  to  make  any  order  of  the  Commis- 


356  FORMS — COURTS 

sion  prescribing  rates  to  be  charged  for  the  transportation  of  property 
became  effective  of  its  own  force  prior  to  a  hearing  in  a  court  of  jus- 
tice of  the  question  of  the  reasonableness  of  the  rates  prescribed  by 
said  order  and  said  sections  15  and  16  in  that  regard  are  void  for  the 
reason  that  in  and  by  section  1,  Article  III  of  the  Constitution  of  the 
United  States  all  judicial  power  is  conferred  upon  a  Supreme  Court 
of  the  United  States  and  such  inferior  courts  as  the  Congress  may 
establish,  and  the  judges  of  said  Supreme  Court  and  such  inferior 
courts  shall  hold  office  during  good  behavior,  and  the  said  Commis- 
sion has  no  power  to  prescribe  any  time  upon  which  any  order  of  the 
said  Commission  prescribing  rates  for  the  transportation  of  property 
to  take  effect,  and  that  the  said  order  of  the  said  Commission  is  void 
and  of  no  effect. 

That  section  16  of  said  act  is  unconstitutional  and  void  in  that  it 
is  therein  provided  that  your  orators  and  each  of  them,  and  any  of- 
ficer or  agent  of  your  orators,  knowingly  failing  or  neglecting  to  obey 
the  said  order  of  the  Commission  herein  set  forth,  shall  forfeit  to  the 
United  States  the  sum  of  $5,000  for  each  day  that  your  orators  or  said 
officers  or  agents  fail  to  obey  said  order,  notwithstanding  that  the 
question  of  the  reasonableness  of  the  rates  established  by  the  said 
order  has  not  been  judicially  investigated  by  due  process  of  law  in 
any  court  of  justice,  and  in  that  said  section  makes  said  order  a 
finality  unless  suspended  by  the  Commission  or  by  some  court  of  com- 
petent jurisdiction,  and  subjects  your  orators  to  penalties  and  forfei- 
tures as  therein  provided,  and  deprives  your  orators  of  their  property 
without  due  process  of  law,  contrary  to  Article  V  of  the  amendments 
to  the  Constitution  of  the  United  States,  and  the  force  and  effect  of 
said  order  sought  to  be  enjoined  and  set  aside  herein  has  been  to 
compel  your  orators,  in  order  to  prevent  their  property  from  being 
forfeited  through  the  operation  of  such  penalties  and  to  save  the 
agents  of  your  orators  from  being  subjected  to  such  penalties  (not- 
withstanding such  penalties  are  only  imposed  because  of  said  orders 
of  said  Commission  attempting  to  prescribe  and  establish  such  rates) 
to  publish  and  put  into  effect  on  October  15,  1908,  the  unreasonably 
low  rates  so  attempted  to  be  prescribed  by  said  Commission  in  and  by 
said  order,  whereby  your  orators  aver  that  their  property  has  been 
and  is  now  being  taken  from  them  against  their  will,  and  without  due 
process  of  law,  and  without  their  having  had  a  day  in  court  and  the 
right  to  a  judicial  investigation  by  a  court  under  due  process  of 
law  for  the  determination  of  the  truth  of  the  matter  in  controversy 
before  said  Commission. 

XV 

Your  orators  further  show  that  the  only  authority  sought  to  be 
vested  in  the  defendant,  Interstate  Commerce  Commission,  to  fix 


FORMS — COURTS  357 

rates  for  the  transportation  of  property  over  the  lines  of  your  orators ' 
railways  is  conferred  by  said  section  15  of  said  amended  act  of  Con- 
gress, approved  June  29,  1906,  by  the  terms  whereof  it  is  provided 
that  whenever  the  said  Commission  shall,  after  a  full  hearing,  be  of 
the  opinion  that  any  of  the  rates  or  charges  demanded,  charged  or 
collected  by  any  common  carrier  or  carriers,  subject  to  the  provisions 
of  said  act  for  the  transportation  of  property,  are  unjust  or  unrea- 
sonable, it  shall  be  authorized  "to  determine  and  prescribe  what  will 
be  the  just  and  reasonable  rate  or  rates,  charge  or  charges  to  be  ob- 
served in  such  case  as  the  maximum  to  be  charged, ' '  and  your  orators 
further  show  that  the  said  order  so  entered  in  said  causes  Nos.  1329 
and  1335,  on  June  2,  1908,  and  the  said  orders  amendatory  thereof 
are  further  unauthorized  and  void,  for  the  reason  that  your  orators 
have  at  no  time  prescribed  rates  for  the  transportation  of  lumber, 
shingles,  or  forest  products  between  the  points  named  in  said  order 
in  excess  of  charges  which  are  just  and  reasonable.  And  furthermore, 
upon  the  hearing  before  the  defendant  in  said  causes  in  which  said 
order  was  so  entered,  no  evidence  was  considered  or  offered  which  in 
anywise  showed  or  tended  to  show  that  the  rates  complained  of 
therein  were  excessive,  unjust  or  unreasonable,  and  the  defendant, 
Interstate  Commerce  Commission,  entered  its  said  order  without  any 
justification  therefor,  and  without  any  evidence  or  finding  of  fact  that 
said  rates  so  fixed  by  said  defendant  were  excessive,  unjust,  or  un- 
reasonable. 

XVI 

Your  orators  further  show  that  the  rates  for  the  transportation  of 
lumber,  shingles,  and  forest  products  from  points  within  to  points 
without  the  State  of  Washington,  as  fixed  by  the  said  tariffs,  so  in  ef- 
fect, on  October  31,  1907,  were  substantially  the  same  rates  that  were 
fixed  by  your  orators  in  the  year  1893,  and  solely  by  reason  of  the 
fact  that  said  rates  had  been  long  continued  was  the  conclusion  reach- 
ed by  the  defendant,  Interstate  Commerce  Commission,  that  the  rates 
complained  of  in  said  causes  1329  and  1335,  which  were  and  are 
higher  than  the  rates  theretofore  in  effect,  were  unreasonable  and  un- 
just, and  solely  by  reason  of  this  fact  was  said  order  so  entered  by 
the  Commission,  but  your  orators  show,  that  it  was  established  by  un- 
contradicted  evidence  upon  the  hearing  before  the  Commission,  that 
the  circumstances  and  conditions  which  existed  at  the  time  said  pre- 
vious rates  were  established  did  not  exist  on  November  1  or  2,  1907, 
and  did  not  exist  at  the  time  of  said  hearing,  and  had  not  existed  for 
more  than  three  years  prior  thereto.  That  it  was  established  at  the 
hearing  before  the  defendant  Commission  by  uncontradicted  evidence 
that  at  the  time  said  previous  rates  were  established  the  condition  of 


358  FORMS — COURTS 

the  lumber  market  in  the  United  States  was  such  that  the  lumber 
product  of  the  State  of  Washington  could  not  move  to  other  States  in 
any  considerable  quantity  at  rates  higher  than  those  so  established, 
but  that  the  conditions  in  this  respect  have  been  gradually  changing 
by  reason  of  the  exhaustion  of  the  timber  supply  in  Michigan,  Minne- 
sota, and  Wisconsin,  and  the  rapid  increase  in  the  value  of  the  yel- 
low-pine product  of  the  Southern  States,  so  that  it  was  established  at 
said  hearing  by  uncontradicted  evidence  that  for  a  period  of  at  least 
three  years  before  November  1,  1907,  the  occasion  for  maintaining 
rates  so  low  as  those  established  in  1893  had  ceased.  And  your 
orators  further  aver  that  the  said  defendant  Commission  in  the  de- 
termination of  the  issues  involved  in  said  complaint  expressly  found 
that  in  and  prior  to  the  year  1893  the  lumber  interests  in  the  States 
of  Washington  and  Oregon  were  in  their  infancy,  and  except  for 
purely  local  consumption  mills  located  therein  disposed  of  their  sur- 
plus at  points  reached  by  water  transportation,  and  that  the  volume 
of  business  was  small  for  a  considerable  time  even  after  the  railroads 
of  your  orators  reached  the  coast ;  that  prior  to  the  year  1893  the  rates 
on  lumber  and  forest  products  from  said  States  to  Omaha,  St.  Paul, 
and  other  Eastern  destinations  were  higher  than  the  rates  established 
in  1893,  and  that  under  said  higher  rates  little,  if  any,  of  the  lumber 
in  said  States  moved  eastward  to  said  eastern  destinations;  at  that 
time  and  for  several  years  thereafter  and  until  the  practical  disap- 
pearance of  competition  with  white-pine  lumber  manufactured  in 
Wisconsin,  Minnesota,  and  Michigan,  manufacturers  of  lumber  in 
Washington  and  Oregon  were  unable  to  meet  the  competition  of 
southern  yellow  pine  and  northern  white  pine  in  the  States  herein- 
before referred  to,  but  that  following  upon  the  'reduction  in  said 
rates  inaugurated  in  1893,  the  lumber  interests  in  said  States  of  Ore- 
gon and  Washington  increased  enormously  and  many  mills  were 
built  in  the  interior  so  that  at  and  for  several  years  prior  to  the  hear- 
ing of  said  complaint  shipments  were  and  had  been  constantly  made 
in  large  amounts  eastward  by  the  lines  of  your  orators  to  eastern 
markets,  amounting  to  a  large  percentage  of  the  output  of  said  mills ; 
and  your  orators  further  aver  that  it  was  expressly  found  to  be  a 
fact  by  the  defendant  Commission  that  during  the  period  of  time  that 
elapsed  after  the  reduction  in  said  rates  in  1893  down  to  the  time 
of  said  hearing  in  the  State  of  Washington  the  price  of  manufactured 
lumber  had  greatly  increased  with  increasing  profits  to  the  manu- 
facturer, resulting  from  the  market  thus  secured  to  him  through  said 
reduced  rates,  and  the  general  advance  in  price  in  said  market  during 
the  years  aforesaid,  and  the  generally  prosperous  conditions  sur- 
rounding the  manufacture  and  sale  of  lumber  in  the  States  hereinbe- 
fore referred  to,  whereby  your  orators  aver  that  the  Commission 


FORMS — COURTS  359 

found  that  each  and  every  of  the  conditions  surrounding  the  lumber 
industry  had  completely  changed  from  the  time  said  rates  were  es- 
tablished in  1893,  and  that  the  prosperous  condition  of  said  industry 
on  and  for  more  than  three  years  prior  to  November  1,  1907,  did  not 
require  or  justify  the  further  maintenance  of  rates  so  low  as  those 
established  in  1893,  under  the  circumstances  aforesaid.  It  was  also 
shown  by  uncontradicted  evidence  at  said  hearing  that  your  orators 
established  and  maintained  the  rates  in  effect  before  November  1, 
1907,  for  the  reason  that  in  1893,  and  for  many  years  thereafter,  the 
great  volume  of  traffic  moving  over  your  orators'  lines  of  railway  was 
westbound,  and  the  State  of  Washington  and  the  neighboring  terri- 
tory furnished  insufficient  traffic  to  load  eastbound  the  cars  employed 
in  moving  the  westbound  traffic,  and  that  the  rates  on  lumber,  shin- 
gles, and  forest  products  were  so  fixed  and  at  an  abnormally  low 
point  to  furnish  loads  for  cars  which  would  have  otherwise  moved 
east  without  revenue-producing  freight,  but  that  for  some  time  be- 
fore November  1,  1907,  the  conditions  had  so  changed  that  it  was  nec- 
essary to  haul  empty  cars  to  the  State  of  Washington  in  order  to 
furnish  facilities  for  the  movement  of  lumber,  shingles,  and  forest 
products.  It  was  also  shown  at  said  hearing  by  uncontradicted  evi- 
dence that  every  other  important  element  in  the  cost  of  transporting 
the  commodities  in  question  had  greatly  increased  over  the  cost  in 
1893  and  subsequent  years.  And  your  orators  further  aver  that  the 
defendant  Commission  expressly  found  in  its  determination  of  said 
complaints  that  in  the  year  1893,  when  said  low  rates  were  estab- 
lished, the  empty  car  movement  on  the  lines  of  your  orators  was  east- 
bound,  and  that  at  that  time  and  for  some  years  thereafter  the  great 
volume  of  traffic  moving  over  your  orators'  lines  of  railway  was 
westbound;  but  your  orators  aver  that  said  Commission  also  found 
that  this  condition  in  and  about  the  transportation  of  lumber  from 
the  States  of  Oregon  and  Washington  had  likewise  changed  since 
said  rates  were  established  in  that  at  and  for  several  years  prior  to 
the  hearing  of  said  complaint  the  direction  of  the  empty  car  movement 
on  the  lines  of  your  orators  has  been  reversed  and  the  same  is  now 
westbound,  and  that  your  orators  are  now,  and  for  several  years  prior 
to  November  1,  1907,  have  been,  compelled  to  haul  westbound  large 
numbers  of  empty  cars  for  the  purpose  of  furnishing  equipment  in 
the  States  of  Oregon  and  Washington  for  the  loading  of  lumber  east- 
bound  into  the  States  hereinbefore  referred  to,  where  said  lumber  is 
now  sold.  And  your  orators  further  aver  that  the  Commission  not 
only  expressly  found  that  the  volume  of  lumber  shipped  during  the 
last  few  years  over  the  lines  of  your  orators  eastbound  had  enormously 
increased  and  that  the  lumber  interests  engaged  in  said  traffic  have 
been  extraordinarily  prosperous  in  the  past  few  years,  but  also  found 


360  FORMS — COURTS 

that  the  density  of  traffic  on  the  lines  of  your  orators  has  increased  to 
such  an  extent  that  it  is  more  than  can  be  advantageously  handled 
on  single-track  roads  such  as  the  lines  of  your  orators  practically  are, 
and  that  because  of  the  increase  in  density  of  traffic  aforesaid,  your 
orators  have  been  compelled  to,  and  are  now  engaged  in  constructing 
double-track  extensions  in  some  cases,  in  order  more  advantageously 
and  expeditiously  to  handle  this  increased  traffic.  Your  orators 
further  aver  that  the  Commission  found  that  the  expense  of  operating 
railways  has  increased  greatly  in  the  past  few  years,  especially  the 
cost  of  labor  and  materials,  over  and  above  the  expense  of  operation 
as  it  existed  at  and  for  a  few  years  after  the  year  1893,  and  further 
found  that  the  increased  traffic  of  your  orators  has  required  addi- 
tional working  force  and  equipment,  thus  recognizing  and  establish- 
ing the  contention  of  your  orators  that  in  the  matter  of  transportation 
of  lumber  from  the  State  of  Washington  the  conditions  had  greatly 
changed  from  the  conditions  in  force  at  the  time  said  rates  were  es- 
tablished in  1893. 

Your  orators  further  show  that  the  conditions  with  respect  to  the 
transportation  of  the  commodities  in  question  so  existing  on  Novem- 
ber 1,  1907,  and  for  several  years  before  that  time,  continued  to  the 
time  of  said  hearing,  as  was  shown  by  the  uncontradicted  evidence 
there  produced,  and  as  your  orators  are  informed  and  believe,  will 
continue  for  at  least  a  period  of  two  years  from  October  15,  1908. 
Your  orators  further  show  that  notwithstanding  the  fact  that  it  was 
so  conclusively  established  at  said  hearing  before  the  defendant  Com- 
mission that  such  rates  maintained  by  your  orators  before  November 
1,  1907,  were  established  and  maintained  under  conditions  wholly  dif- 
ferent from  those  existing  at  the  time  the  rates  complained  of  took 
effect  and  at  the  time  of  the  hearing,  the  defendant,  Interstate  Com- 
merce Commission,  held  as  a  matter  of  law  that  the  continuance  of 
said  previous  rates  raised  a  presumption  that  such  higher  rates  were 
unjust  and  unreasonable,  wherein  said  Commission  acted  erroneously 
and  through  a  mistake  and  under  a  misapprehension  of  the  law  and 
without  authority. 

XVII 

Your  orators  further  show  that  the  rates  so  fixed  by  the  tariffs  so 
becoming  effective  on  November  1  and  2,  1907,  are  lower  than  the 
rates  charged  for  any  like  service  by  any  carriers  in  the  United  States, 
and  lower  than  rates  heretofore  fixed  by  the  defendant,  Interstate 
Commerce  Commission,  for  like  services.  The  rates  so  fixed  by  said 
order  are  unremunerative  and  confiscatory  in  that,  while  it  is  not  pos- 
sible to  accurately  compute  the  actual  cost  involved  in  transporting  a 
car  of  lumber  from  the  State  of  Washington  to  eastern  destinations, 


FORMS — COURTS  361 

nevertheless  it  is  possible  with  substantial  accuracy  to  determine 
whether  or  not  the  transportation  of  lumber  aforesaid  may  be  con- 
ducted without  loss  under  the  rates  so  fixed  by  said  order,  and  your 
orators  upon  information  and  belief  aver  that  the  rates  so  fixed  by 
said  order  are  not  and  will  not  be  sufficient  to  pay  the  cost  of  conduct- 
ing the  transportation  aforesaid  and  any  just  or  fair  return  upon  the 
value  of  the  property  used  in  said  transportation,  and  said  rates  so 
fixed  by  said  order  aforesaid  bear  to  fair  or  just  relation  to  the  rates 
on  other  traffic  moving  over  your  orators '  lines  of  railway,  and  the  en- 
forcement of  said  order  of  the  defendant  will  impose  an  undue  and 
unreasonable  burden  not  only  upon  your  orators  but  upon  the  ship- 
pers of  other  commodities. 

Your  orators  further  show  that  the  enforcement  of  said  order  of 
the  defendant  will  deprive  your  orators  of  revenue  from  the  trans- 
portation of  lumber,  shingles,  and  forest  products  to  which  they  would 
be  entitled  under  the  rates  fixed  by  said  tariffs  so  filed,  published  and 
posted  to  an  amount  of  more  than  $600,000  per  year,  and  each  of 
your  orators,  by  the  enforcement  of  said  order,  will  be  deprived  of 
revenue  in  a  sum  greatly  in  excess  of  $2,000  per  year. 

XVIII 

Your  orators,  therefore,  pray  that  a  decree  be  entered  herein  set- 
ting aside  and  annulling  the  said  orders  of  the  defendant,  Interstate 
Commerce  Commission,  in  said  causes  Nos.  1329  and  1335,  and  per- 
petually enjoining  the  defendant  and  its  members,  their  agents,  ser- 
vants, and  representatives,  from  enforcing  said  orders,  and  from 
taking  steps  or  instituting  any  proceedings  for  the  enforcement  of 
said  orders. 

And  your  orators  further  pray  that  such  other  and  further  relief 
be  granted  in  the  premises  as  justice  and  equity  may  require. 

Your  orators  further  pray  that  your  honors  grant  unto  your  ora- 
tors a  writ  of  subprena,  directed  to  said  Interstate  Commerce  Com- 
mission, commanding  it  at  a  certain  day  and  under  a  certain  penalty 
therein  to  be  specified,  to  be  and  appear  before  your  honors  in  this 
honorable  court  and  then  and  there  full,  true,  and  complete  answer 
make  to  all  and  singular  the  premises,  but  not  under  oath  (an  answer 
under  oath  being  hereby  expressly  waived),  and  to  stand  to  and 
abide  such  order  and  decree  herein  as  to  your  honors  shall  seem 
meet  and  agreeable  to  equity  and  good  conscience. 

And  your  orators  will  ever  pray. 


362  FORMS — COURTS 

No.  14b. — Bill  to  enjoin  order  of  the  Commission,  another  form.' 

(CAPTION) 

Address: 

Your  orator,  The  Baltimore  and  Ohio  Railroad  Company,  respect- 
fully shows  as  follows: 


The  Baltimore  and  Ohio  Railroad  Company  is  a  corporation  duly 
incorporated  by  the  general  assembly  of  Maryland  by  chapter  123  of 
the  acts  of  1826 ;  and  is  a  common  carrier  engaged  in  the  transporta- 
tion of  property  by  railroad  between  points  in  Maryland  and  points 
in  other  States  and  in  the  District  of  Columbia,  and  has  its  principal 
operating  office  in  the  city  of  Baltimore  and  District  of  Maryland. 
The  defendant,  the  Interstate  Commerce  Commission,  has  been  creat- 
ed and  exists,  and  at  all  times  mentioned  in  this  complaint  has  ex- 
isted under  and  by  virtue  of  an  act  of  the  Congress  of  the  United 
States  entitled  "An  act  to  regulate  commerce,"  approved  February 
4,  1887,  and  acts  amendatory  thereof  and  supplemental  thereto. 

The  matter  in  dispute  in  this  cause  exceeds,  exclusive  of  interest 
and  costs,  the  sum  or  value  of  $2,000. 

II 

On  the  24th  day  of  June,  1908,  there  was  served  upon  your  orator, 
in  accordance  with  the  provisions  of  said  act  to  regulate  commerce 
and  amendments  and  supplements  thereto,  an  order  of  the  Interstate 
Commerce  Commission  entered  June  2,  1908,  in  the  case  entitled 
"Rail  and  River  Coal  Company  v.  The  Baltimore  and  Ohio  Railroad 
Company,  No.  1322,"  accompanying  which  order  was  a  report  from 
the  Commission  bearing  the  same  date.  Your  orator  files  herewith 
a  certified  copy  of  said  order  and  of  said  report,  marked  ' '  Complain- 
ant's  Exhibit,  No.  1,"  and  prays  that  it  be  taken  as  part  of  this  bill 
of  complaint.  As  fully  appears  in  and  by  said  order  of  the  Com- 
mission and  report  accompanying  the  same,  the  Commission  thereby 
assumes  authority  under  section  15  of  the  interstate  commerce  act  as 
amended  June  29,  1906,  to  enter  said  order  as  one  relating  to  or 
prescribing  regulations  or  practices  affecting  the  rates  or  charges  de- 
manded, charged  or  collected  by  your  orator  for  the  transportation  of 
property,  as  defined  in  the  first  section  of  said  interstate  commerce 
act  as  so  amended,  and  the  said  Commission  does  in  and  by  said  order 
require  your  orator  on  or  before  the  1st  day  of  August,  1908,  to 

"Adapted  from  B.  &  O.  R.  Co.  v.  I.  C.  C.,  in  Circuit  Court  of  the  United 
States  for  the  District  of  Maryland,  July,  1908. 


FORMS — COURTS  363 

cease  and  desist,  and,  during  the  period  of  at  least  two  years  there- 
after, to  abstain  from  maintaining  and  enforcing  with  respect  to 
interstate  shipments  of  coal  the  present  practice  or  regulation  of 
failing  or  refusing  in  times  of  coal  car  shortage  to  count  railway  fuel 
cars  and  leased  or  so-called  private  coal  cars  against  the  distributive 
shares  of  available  system  coal  cars,  to  which  the  coal  operators  to 
whom  said  leased  or  so-called  private  coal  cars  belong  or  said  foreign 
railway  fuel  cars  are  consigned  are  entitled  according  to  the  ratings 
of  their  respective  mines,  and  does  require  your  orator  to  establish 
on  or  before  the  1st  day  of  August,  1908,  and  during  a  period  of  at 
least  two  years  thereafter  to  maintain  and  enforce  with  respect  to 
interstate  shipments  of  coal  and  the  distribution  of  cars  therefor  a 
practice  or  regulation  specified  and  prescribed  in  said  order. 

Ill 

The  system  of  railroads  operated  by  your  orator  extends  from 
Philadelphia,  in  the  State  of  Pennsylvania,  through  that  State  and  the 
States  of  Delaware,  Maryland,  West  Virginia,  Ohio,  Indiana,  and 
Illinois  to  the  city  of  Chicago  in  the  last  named  State,  and  through 
the  States  of  Pennsylvania  and  Ohio  to  Cleveland,  Lorain  and  Fair- 
port  on  Lake  Erie,  and  also  comprises  numerous  branch  lines  and 
intersecting  lines  of  railroad  lying  in  the  several  States  named  and 
in  the  District  of  Columbia,  the  whole  comprising  a  mileage  of  ap' 
proximately  3,250  miles  of  railroad.  In  the  practical  operation  of 
said  system  of  railroads  your  orator  must  and  does  divide  the  same 
into  operating  divisions,  of  which  there  are  12,  namely,  the  Philadel- 
phia, Baltimore,  Cumberland,  Monongah,  Wheeling,  Ohio  River, 
Cleveland,  Newark,  Connellsville,  Pittsburg,  New  Castle  and  Chicago 
divisions ;  and  with  respect  to  interstate  shipments  of  coal  your  orator 
must  and  does  make  distribution  daily  of  cars  therefor  to  the  mines 
located  on  said  respective  operating  divisions,  such  distribution  or 
apportionment  of  cars  being  made  between  the  mines  on  each  re- 
spective operating  division  exclusively.  The  bituminous  coal  mines 
served  by  the  system  of  railroads  operated  by  your  orator  as  aforesaid 
are  situated  in  the  States  of  Maryland,  West  Virginia,  Pennsylvania 
and  Ohio,  and  number  approximately  340  separate  and  distinct 
mines,  producing  respectively  coals  of  several  diverse  characters  and 
uses,  and  shipping  the  same  to  several  diverse  markets.  The  mines 
in  Maryland  are  located  on  the  Cumberland  division;  the  greater 
part  of  the  mines  in  West  Virginia  are  located  on  the  Monongah  di- 
vision; the  mines  in  Pennsylvania  are  located  on  the  Connellsville 
and  Pittsburg  divisions ;  the  mines  in  Ohio  are  located  on  the  Whoel- 
ing,  Cleveland  and  Newark  divisions;  and  the  mining  operations  of 
the  Rail  and  River  Coal  Company,  the  complainant  in  the  said  case 


364  FORMS — COURTS 

before  the  Interstate  Commerce  Commission,  are  located  on  the  New- 
ark division,  producing  a  fuel  coal  shipped  entirely  to  western  mar- 
kets, and  which  has  never  been  and  cannot  be  marketed  in  the  East. 

IV 

Your  orator  owns  and  controls,  and  has  at  all  times  herein  men- 
tioned owned  and  controlled,  system  coal  cars  sufficient  in  number  and 
capacity  to  enable  it  fully  to  perform  its  duty  as  a  common  carrier 
in  respect  to  the  receipt  and  transportation  of  coal  from  all  said 
mines.       Said  system  coal  cars  number  approximately  45,000,  and 
have  an  aggregate  tonnage  capacity  of  more  than  1,800,000  tons.  Such 
coal  car  equipment  during  a  considerable  portion  of  each  year  is 
much  larger  than  is  required  for  the  receipt  and  transportation  of  all 
coal  tendered  to  your  orator  for  carriage  by  mine  operators,  and 
during  the  greater  part  of  each  year  is  sufficient  to  enable  your  ora- 
tor to  receive  and  transport  all  coal  so  tendered  to  it.     It  would  be 
sufficient  at  all  times  were  it  not  for  circumstances  beyond  your  ora- 
tor's control,  which  at  times,  and  particularly  during  the  winter 
months,  prevent  your  orator  from  supplying  mine   operators  with 
sufficient  cars  for  the  receipt  and  transportation  of  all  such  coal. 
Principal  among  such  circumstances  are  the  detention  on  foreign 
railroads  of  cars  of  your  orator  which  have  been  consigned  to  points 
on  such  foreign  railroads,  and  the  very  great  fluctuations  in  the 
amount  of  coal  tendered  to  your  orator  for  carriage  by  the  mines 
aforesaid.    In  order  to  provide  for  the  equitable  division  of  its  sys- 
tem coal  cars  among  mine  operators  at  the  times  of  car  shortage 
above  referred  to,  your  orator  has  devised  and  put  into  effect  on 
its  system  of  railroads  a  uniform  method  of  coal  car  distribution, 
whereby  your  orator's  system  coal  car  equipment  available  on  each 
operating  division  is  divided  among  the  mines  in  proportion  to  the 
tonnage  rating  of  such  mines,  which  rating  is  in  each  case  ascertained 
by  a  careful  investigation  of  the  actual  capacity  of  the  mine  to  pro- 
duce and  ship  coal.    Your  orator  has  at  all  the  times  mentioned  in 
this  complaint  kept  its  railroad  equipped  with  motive  power,  em- 
ployes, tracks,  terminals,  sidings  and  all  other  facilities  amply  ade- 
quate to  enable  it  at  all  times  promptly  to  transport  all  the  coal 
cars  hereinbefore  or  hereinafter  mentioned,  and  the  car  shortages 
hereinbefore  referred  to  have  not  in  any  degree  been  caused  or  in- 
creased by  any  deficiency  in  or  lack  of  motive  power,  employes,  tracks, 
terminals,  sidings,  or  other  facilities. 


Beginning  in  the  year  1852  your  orator  established  on  its  line  in 
respect  of  the  coal  trade  a  service  of  transportation  in  the  cars  of 


FORMS — COURTS  365 

others  in  addition  to  the  service  of  transportation  in  its  own  cars. 
At  the  same  time  your  orator  adopted  the  rule  that  as  to  each  class 
of  service  all  shippers  should  be  placed  on  a  footing  of  equality,  therff- 
by  permitting  all  shippers  alike  to  avail  themselves  of  either  of  such 
classes  of  service  on  the  same  terms.  In  establishing  on  such  terms 
these  two  classes  of  transportation  your  orator  followed  the  practice 
of  English  railroads  and  of  several  railroads  in  the  United  States 
pursuant  to  the  requirements  of  their  charter  acts.  The  two  classes 
of  transportation  thus  established  have  ever  since  been  continuously 
maintained  by  your  orator  in  the  same  manner  and  in  accordance 
with  the  rule  of  equality  hereinbefore  stated.  Throughout  this  time 
the  motive  power,  employes,  tracks,  terminals,  sidings  and  all  other 
facilities  of  your  orator  have  at  all  times  been  provided  with  a  view 
to  the  movement  not  only  of  the  system  cars  which  it  owns  and  con- 
trols but  also  of  the  cars  supplied  by  shippers,  and  have  for  many 
years  been  and  are  now  amply  sufficient  for  the  prompt  movement  of 
all  cars  of  both  classes.  Your  orator  has  during  all  this  time  applied 
such  motive  power,  employees,  tracks,  terminals,  sidings  and  all  other 
facilities  to  the  use  of  both  these  classes  of  transportation  without  giv- 
ing any  preference  to  one  as  against  the  other.  These  two  classes  of 
transportation  as  maintained  by  your  orator  being  thus  separate  and 
distinct,  your  orator  could  not  justly  and  legally  diminish,  and  there- 
fore does  not  diminish  the  share  of  its  system  cars  to  which  a  mine 
is  equitably  entitled  at  times  of  car  shortage  because  of  the  fact  that 
the  operator  of  such  mine  has  provided  other  cars  for  the  transporta- 
tion of  coal  from  that  mine.  In  this  respect  the  practice  of  your  ora- 
tor has  been  uniform  ever  since  it  established  the  second  class  of 
transportation  in  cars  of  others  in  1852.  Since  that  period  the  cars 
supplied  by  shippers  for  the  carriage  of  their  coal  have  increased  in 
numbers  from  time  to  time  as  shippers  have  availed  themselves  of 
the  class  of  transportation  then  established  by  your  orator.  Shippers 
of  commodities  other  than  coal  have  also  availed  themselves  of  this 
class  of  transportation.  There  are  now  in  use  on  your  orator's  sys- 
tem of  railroads  approximately  1,500  private  coal  cars  owned  by  seven 
mine  operators. 

The  carriage  of  merchandise  and  commodities  in  the  car  of  the 
shipper  or  consignee  is,  under  the  English  act  of  1854  (36  and  37 
Viet.  c.  48),  defined  as  a  class  or  description  of  "traffic."  Under  the 
acts  in  this  country,  State  and  Federal,  it  is  generally  defined  as  a 
class  or  description  of  "transportation;"  but  in  both  countries  alike 
it  is  by  statute  and  in  practice  a  service  distinct  from  the  service 
rendered  by  the  railroad  carrier  in  the  cars  of  the  carrier.  This 
branch  of  the  railroad  service  did  not  originate  with  the  carrier,  but 


366  FORMS — COUBTS 

originated  in  the  requirements  of  the  law  and  the  demands  of  the 
producers,  shippers  and  consumers  of  merchandise. 

In  this  country,  while  this  branch  of  the  transportation  service  has 
been  protected  against  encroachments  of  the  carrier  by  such  acts  as 
that  of  1849,  in  Pennsylvania  (act  of  February  19,  1849,  P.  L.  79, 
section  18),  and  of  1878,  in  Maryland  (Maryland  laws  of  1878,  chap- 
ter 155,  section  5,  approved  March  27,  1878),  the  force  operating 
generally  to  compel  the  carrier  to  continue  this  class  of  transporta- 
tion service  side  by  side  with  the  transportation  service  in  its  own 
cars  has  been  the  commercial  force  brought  to  bear  by  the  pro- 
ducers, shippers  and  consumers  of  particular  articles  of  merchandise 
which  could  be  more  economically  handled  by  means  of  the  transpor- 
tation service  in  individual  cars.  The  peculiar  function  of  the  rail- 
road car  in  the  bituminous  coal  trade  is  that  it  affords  the  most  eco- 
nomical storage  of  the  commodity  between  the  miner  and  the  con- 
sumer. The  difficulty  and  great  cost  of  storing  bituminous  coal, 
either  at  the  mines  or  at  points  of  consumption,  have  confined  such 
storage  in  quantity  to  points  reached  by  water.  Wherever  the  rail- 
road car  can  find  access  practically  the  only  storage  is  in  cars,  be- 
cause that  method  of  doing  business  is  the  most  economical  method. 

The  unavoidable  irregularities  in  the  supply  of  cars,  which  the 
railroad  carrier  is  able  to  furnish  or  can  be  compelled  to  furnish  in 
the  discharge  of  its  common  law  or  statutory  obligations  in  that  re- 
gard, have  been  considered  by  many  producers  and  consumers,  both 
in  the  past  and  in  the  present,  as  necessitating  the  acquisition  by  them 
of  individual  cars,  in  order  to  avail  themselves  of  the  transportation 
service  in  those  cars,  even  though,  as  is  the  fact,  such  service  is 
much  more  expensive  to  the  owners  of  such  cars  than  is  the  service 
rendered  by  the  railroad  in  its  own  cars.  The  use  of  the  car  as  the 
economical  method  of  storing  coal  between  the  producer  and  con- 
sumer, has  kept  in  existence  in  the  coal  trade  the  demand  for  the 
transportation  service  in  individual  cars,  while  in  the  course  of  rail- 
road development  that  demand  has  ceased  in  many  other  lines  of 
trade,  because  of  the  additional  expense  entailed  upon  the  trader. 

VI 

In  the  coal  trade  there  are  now  used  in  this  service  of  transporta- 
tion not  only  cars  owned  by  the  miners  and  shippers  of  coal,  herein 
and  in  the  order  of  the  Commission  referred  to  as  "private  coal 
cars,"  but  also  cars  furnished  to  such  shippers  by  consignees, — this 
latter  class  comprising  cars  supplied  by  manufacturing  and  industrial 
corporations  and  also  cars  supplied  by  foreign  railroads  for  the  car- 
riage of  coal  which  such  railroads  purchase  as  fuel  from  the  mine 
operators  served  by  your  orator. 


FORMS — COURTS  367 

Under  your  orator's  present  regulations  and  practice  it  is  open 
to  all  mines  alike  to  sell  coal  to  any  railroad  that  will  buy  it.  Such 
coal  is  usually  sold  f.  o.  b.  cars  at  the  mine.  The  foreign  railroad 
having  its  own  cars  in  which  to  transport  the  coal  bought  for  its  own 
use,  sends  its  own  cars  for  that  special  purpose  under  such  instruc- 
tions that  they  cannot  be  used  for  any  other.  They  are  not  dis- 
tributed upon  any  system  whatever,  but  are  sent  directly  to  the 
mine  to  be  loaded  with  the  coal  that  the  foreign  railroad  has  pur- 
chased from  it. 

The  same  conditions  apply  also  to  the  transportation  of  coal  pur- 
chased at  the  mines  by  a  consumer  who  has  individual  cars  of  his 
own  to  send  for  the  coal.  It  is  open  to  all  mines  alike  to  sell  coal  to 
such  a  consumer  and  thereby  obtain  the  opportunity  to  load  it  into 
the  consumer's  cars.  The  use  of  these  consumers'  cars,  as  in  the  case 
of  the  mine  operators'  own  cars,  results  in  an  increased  transporta- 
tion expense  to  the  owner  of  the  cars,  but  the  advantages  of  regular- 
ity and  control  are  found  by  the  owners  who  have  successfully  used 
them  to  offset  in  their  business  transactions  the  increased  expense. 
The  foreign  railroad  must  insure  itself  a  steady  supply  of  fuel  coal, 
and  the  furnace  or  steel  works  must  have  a  continuous  supply  of  coal 
of  peculiar  quality. 

VII 

The  mining  operations  of  the  Rail  and  River  Coal  Company,  com- 
plainant in  the  said  case  before  the  Commission,  are  located  on  the 
operating  division  known  as  the  Newark  division  of  your  orator's 
system  of  railroads.  In  the  answer  filed  by  your  orator  in  said  case 
before  the  Commission  it  was  alleged,  was  proved  by  the  uncontra- 
dicted  testimony  adduced  before  the  Commission,  and  was  not  found 
to  the  contrary  by  the  Commission,  that  on  the  said  Newark  division 
no  operator  or  mine  owned  or  used  private  coal  cars,  that  the  sup- 
ply of  cars  to  the  mining  operations  of  the  Rail  and  River  Coal  Com- 
pany was  in  no  way  affected  in  times  of  car  scarcity  by  the  regula- 
tions or  practice  of  your  orator  in  respect  to  said  private  coal  cars, 
such  regulations  or  practice  having  no  application  and  nothing  to 
apply  to  on  the  Newark  division.  No  other  operator  on  the  Newark 
division  or  elsewhere  was  a  party  to  the  said  case  before  the  Interstate 
Commerce  Commission. 

VIII 

Your  orator  is  advised,  and  so  states,  that  the  said  order  of  the 
Interstate  Commerce  Commission  is  unlawful,  null  and  void  for  the 
following  and  among  other  reasons,  and  in  the  following  and  among 
other  particulars,  to  wit: 


368  FORMS — COURTS 

First.  In  that  said  Commission  has  assumed  and  does  assume  to 
make  and  enforce  said  order  on  authority  of  section  15  of  the  act 
to  regulate  commerce  as  amended  by  the  act  passed  June  29,  1906, 
as  one  contemplated  and  authorized  by  said  section  15,  and  assumes 
and  seeks  to  subject  your  orator  to  the  penalties  provided  by  sec- 
tion 16  of  said  act  as  so  amended  for  failure  to  obey  an  order  law- 
fully made  under  said  section  15,  whereas  in  fact  and  in  law  said 
order  of  the  Commission  is  not  an  order  contemplated  or  authorized 
by  said  section  15  or  lawfully  issuable  thereunder  by  the  said  Com- 
mission. 

Second.  In  that  as  to  so  much  of  said  order  as  relates  to  or  affects 
the  counting  or  not  counting  by  your  orator  of  so-called  private 
coal  cars  belonging  to  individual  operators,  the  Commission  made  and 
issued  said  decision  and  order  without  consideration  of  the  facts 
legally  and  properly  proved  in  evidence  in  the  said  case  before  the 
Commission,  and  did  make  and  issue  said  decision  and  order  upon  and 
by  reason  of  an  erroneous  assumption  of  law  and  upon  facts  alleged 
to  have  been  found  by  the  Commission  from  the  evidence  adduced 
before  it  in  other  proceedings  before  the  Commission,  to  none  of  which 
proceedings  your  orator  was  a  party.  Referring  to  said  private  cars 
and  also  foreign  railway  fuel  cars  the  said  report  of  the  Commission 
says: 

"Under  the  defendant's  rules  these  cars  are  delivered  to  the  opera- 
tor to  whom  they  are  consigned  or  manifested,  without  being  charged 
against  his  percentage  in  the  general  distribution.  And  these  prac- 
tices the  complainants  insist  are  discriminatory  in  their  results  and 
therefore  unlawful.  These  questions  have  been  presented  and  elab- 
orately argued  before  the  Commission  in  other  proceedings,  and  have 
had  exhaustive  and  careful  consideration.  They  will  not,  therefore, 
be  further  considered  in  connection  with  this  complaint.  It  will  suf- 
fice to  say,  in  accordance  with  the  announcement  made  in  Railroad 
Commission  of  Ohio  v.  Hocking  Valley  Ry.  Co.  (12  I.  C.  C.,  398),  that 
the  view  of  the  Commission  is  that  the  practice  of  the  defendant  in 
not  charging  private  or  individual  cars  against  the  percentages  of 
the  operators  receiving  them  is  unlawful  and  that  such  operators  are 
not  entitled  in  the  general  distribution  of  available  cars  to  receive 
their  respective  proportions  of  the  system  cars  in  addition  to  their 
private  cars.  A  like  ruling  must  be  made  with  respect  to  foreign 
railway  fuel  cars." 

Third.  In  that  as  to  so  much  of  said  order  as  relates  to  or  affects 
the  counting  or  not  counting  by  your  orator  of  foreign  railway  fuel 
cars  consigned  to  individual  operators,  the  Commission  made  and  is- 
sued said  decision  and  order  without  consideration  of  the  facts  legally 
and  properly  proved  in  evidence  in  the  said  case  before  the  Commis- 


FORMS — COURTS  369 

sion,  and  did  make  and  issue  said  decision  and  order  upon  and  by 
reason  of  an  erroneous  assumption  of  law  and  upon  facts  alleged  to 
have  been  found  by  the  Commission  from  the  evidence  adduced  be- 
fore it  in  other  proceedings  before  the  Commission,  to  none  of  which 
proceedings  your  orator  was  a  party. 

Fourth.  In  that  the  said  Commission  erred  in  holding  or  deciding 
that  your  orator  was  or  is  in  and  by  its  present  regulations  or  prac- 
tices mentioned  in  said  order  doing  anything  unlawful,  and  in  order- 
ing and  requiring  your  orator  to  abstain  from  maintaining  and  en- 
forcing with  respect  to  interstate  shipments  of  coal  its  present  prac- 
tice or  regulation  referred  to  in  said  order. 

Fifth.  In  that  the  said  Commission  erred  in  requiring  in  and  by 
the  said  order  that  your  orator  establish  with  respect  to  interstate 
shipments  of  coal  a  practice  or  regulation  specified  in  said  order. 
By  establishing,  maintaining  and  enforcing  such  a  practice  or  regu- 
lation as  that  so  specified  your  orator  would  in  fact  violate  the  pro- 
visions of  the  third  section  of  the  act  to  regulate  commerce  by  making, 
creating  and  giving  undue  and  unreasonable  preferences  and  ad- 
vantages, and  undue  and  unreasonable  prejudices  and  disadvantages 
as  between  shippers  of  coal  in  interstate  commerce  over  its  lines  of 
railroad  contrary  to  the  provisions  df  such  section. 

IX 

Your  orator  further  shows  section  16  of  said  act  to  regulate  com- 
merce as  amended  contains  the  following  provision : 

"Any  carrier,  any  officer,  representative,  or  agent  of  a  carrier,  or 
any  receiver,  trustee,  lessee,  or  agent  of  either  of  them,  who  know- 
ingly fails  or  neglects  to  obey  any  order  made  under  the  provisions 
of  section  fifteen  of  this  act,  shall  forfeit  to  the  United  States  the 
sum  of  five  thousand  dollars  for  each  offense.  Every  distinct  viola- 
tion shall  be  a  separate  offense,  and  in  case  of  a  continuing  violation 
each  day  shall  be  deemed  a  separate  offense. 

"The  forfeiture  provided  for  in  this  act  shall  be  payable  into  the 
Treasury  of  the  United  States,  and  shall  be  recoverable  in  a  civil 
suit  in  the  name  of  the  United  States  brought  in  the  district  where 
the  carrier  has  its  principal  operating  office,  or  in  any  district  through 
which  the  road  of  the  carrier  runs." 

The  said  unlawful  order  of  the  Commission,  made  and  promulgated 
by  it  as  aforesaid  in  assumed  exercise  of  an  authority  unlawfully 
claimed  by  the  Commission  under  section  15  of  said  act,  will,  unless 
the  same  be  enjoined,  set  aside,  annulled  or  suspended  by  this  hon- 
orable court,  subject  your  orator  to  a  multiplicity  of  suits  for  heavy 


370  FORMS — COURTS 

penalties  under  the  above  quoted  provisions  of  said  section  16  of  said 
act.  Compliance  by  your  orator  with  the  requirements  of  said  un- 
lawful order,  even  temporarily  pending  final  adjucation  herein  of  the 
lawfulness  of  the  same,  will  not  only,  as  already  hereinbefore  stated, 
deprive  your  orator  of  the  benefit  of  its  respective  appeals  and  super- 
sedeas  and  of  the  judgment  of  this  court  in  its  favor,  but  will  upon  the 
final  judgment  of  this  court  in  said  cause  that  said  order  is  unlawful, 
null  and  void,  or  at  any  time  before  such  final  judgment,  render  your 
orator  liable  to  actions  for  damages  by  any  and  all  coal  operators  on  its 
lines  of  railroad  who  own  private  coal  cars  or  who  have  made  con- 
tracts with  foreign  railroad  companies  or  other  consumers  for  the 
loading  of  consumers'  cars,  and  not  only  will  your  orator  be  sub- 
jected to  a  multiplicity  of  suits  on  this  account,  but  your  orator  will 
be  without  any  means  of  reparation  for  the  losses  sustained  by  it 
thereby. 

Wherefore,  your  orator  prays  that  a  preliminary  or  interlocutory 
order  of  injunction  may  be  entered  suspending  the  order  of  the  said 
Interstate  Commerce  Commission  and  restraining  the  said  Interstate 
Commerce  Commission  from  taking  any  steps  or  instituting  any  pro- 
ceedings to  enforce  said  order,  until  the  final  determination  of  this 
cause,  and  that  upon  a  final  hearing  of  this  cause  a  decree  be  entered 
herein  enjoining,  setting  aside,  annulling  and  suspending  the  said 
order  of  the  Interstate  Commerce  Commission  and  perpetually  en- 
joining the  enforcement  of  said  order. 

Your  orator  further  prays  that,  if  any  delay  shall  intervene  be- 
tween the  filing  of  this  bill  and  the  issuance  of  a  preliminary  or 
interlocutory  order  of  injunction  as  prayed  for  herein,  an  order  be 
issued  herein  suspending  the  order  of  the  Interstate  Commerce  Com- 
mission and  enjoining  the  enforcement  thereof  until  the  hearing  and 
final  determination  of  the  application  for  the  preliminary  or  inter- 
locutory order  prayed  for  herein. 

Your  orator  further  prays  that  such  other  and  further  relief  be 
granted  in  the  premises  as  justice  and  equity  may  require. 

Your  orator  further  prays  that  your  honors  may  grant  unto  your 
orator  a  writ  of  subpcena  of  the  United  States  of  America  directed 
to  the  Interstate  Commerce  Commission,  commanding  it  at  a  certain 
day  and  under  a  certain  penalty  therein  to  be  specified  personally  to 
be  and  appear  before  your  honors  in  this  honorable  court  and  then 
and  there  full,  true  and  complete  answer  make  to  all  and  singular 
the  premises,  but  not  under  oath  (an  answer  under  oath  being  hereby 
expressly  waived),  and  to  stand  to  and  abide  such  order  and  de- 


FORMS — COURTS  371 

cree  herein  as  to  your  honors  shall  seem  meet  and  agreeable  to  equity 
and  good  conscience. 

And  your  orator  will  ever  pray,  etc. 

THE  BALTIMORE  AND  OHIO  RAILROAD  COMPANY. 

By   


Solicitor  for  Complainant. 
(Usual  verification). 


No.  15. — Order  why  injunction  should  not  issue  * 
(CAPTION) 

In  reading  the  bill  filed  herein  by  the  above-named  complainant 

against  the  above-named  defendants  on  the  day  of  , 

190 . . ,  the  affidavit  of and  the  affidavit  of ,  each  veri- 
fied on  the day  of ,  190 . . ,  and  the  papers  and  docu- 
ments annexed  to  said  bill  and  affidavits  as  referred  to  therein,  it  is 
by  the  court  this day  of ,  190 . . . 

Ordered,  That  the  defendants,  the  Interstate  Commerce  Commis- 
sion, and and ,  show  cause  before  this  court,  at  a  term 

thereof  appointed  to  be  held  in  the  city  of ,  State  of ,  on 

the  day  of  ,  190. .,  at  o'clock  a.  m.,  on  that 

day,  or  as  soon  thereafter  as  counsel  can  be  heard,  why  an  injunction 
should  not  issue  herein  enjoining  and  restraining  the  defendants  and 
their,  and  each  of  their,  officers,  attorneys,  agents,  servants,  and  as- 
sistants during  the  pendency  of  this  action  and  until  the  further 
order  of  the  court  therein,  from  in  any  manner  enforcing  or  attempt- 
ing to  enforce  the  order  of  the  Interstate  Commerce  Commission, 

dated  the day  of ,  190 . . ,  against  this  complainant  and 

in  favor  of  the  said  and ,  and  from  beginning  or  at- 
tempting to  begin  any  action  or  proceeding  for  the  purpose  of  enforc- 
ing or  attempting  to  enforce  the  said  order,  or  compelling  or  oblig- 
ing the  complainant  herein  to  allow  the  delivery  of  oil  in  tank  cars  at 
its  Clymer  street  terminal,  or  of  compelling  or  obliging  this  com- 
plainant to  establish  and  maintain  a  regulation  rescinding  its  regula- 
tion dated  the day  of ,  190 . . ,  prohibiting  the  delivery 

of  oil  in  tank  cars  at  its  Clymer  street,  Brooklyn,  terminal,  and  pro- 
viding for  the  delivery  of  petroleum,  particularly  in  tank  cars,  at  its 
said  Clymer  street,  Brooklyn,  terminal. 

That  a  copy  of  this  order  and  of  the  said  bill,  affidavits,  and  papers 
be  served  upon  the  defendant,  the  Interstate  Commerce  Commission, 

8  From  D.  L.  &  W.  E.  Co.  v.  I.  C.  C.,  Circuit  Court,  Southern  District  of  New 
York,  June,  1907  (155  Fed.,  512), 


372  FORMS — COURTS 

either  personally  on  the  Chairman,  or  the  Secretary  of  the  said  Com- 
mission, or  by  depositing  the  said  papers  in  a  postpaid  envelope  in  the 

general  post  office  in  the  city  of ,  directed  to  the  said  Interstate 

Commerce  Commission  at  its  address,  American  National  Bank  Build- 
ing, No.  1317  P  street  northwest,  Washington,  D.  C.,  and  upon  the 

defendants   and   personally,  or  upon  their  attorney, 

,  personally,  or  by  leaving  the  same  at  his  office,  No 

street,  city  of ,  with  a  person  of  suitable  age  and  dis- 
cretion, on  or  before  the day  of ,  which  said  service  is 

hereby  declared  sufficient. 


\ 

United  States  Circuit  Judge. 


No.  16. — Form  of  notice  of  application  for  an  order T 
In  the  Circuit  Court  of  the  United  States  for  the  .          .  District  of 


A B RAILWAY  COMPANY, 

v. 
INTERSTATE     COMMERCE     COMMISSION 

and  E F and  G 

H ,  doing  business  under  the 

firm  name  of  F &  Company. 

To  the  defendants: 

You  are  further  notified  that  if  any  delay  intervenes  in  the  issuance 
of  the  said  temporary  or  interloctuory  order  by  said  court  on  the 

day  of  ,  190 . . ,  the  complainants  in  said  suit  will  at 

said  time  and  place  pray  the  issuance  of  an  order  suspending  the 
above-mentioned  order  entered  by  you,  and  enjoining  its  enforcement 
until  the  hearing  and  final  determination  of  the  said  application  for  a 
temporary  or  interlocutory  order,  as  aforesaid. 

D E , 

Solicitor  for  Complainants. 


(Address) 


7  Adapted  from  A.  B.  Stickney  v.  I.  C.  C.,  in  the  Circuit  Court  of  the  United 
States  within  and  for  the  District  of  Minnesota,  May,  1908. 


FORMS — COURTS  373 

No.  16a. — Notice  of  passage  of  order 

SIRS  :  Please  take  notice  of  an  order  duly  made  herein  by  the  Hon- 
orable   ,  United  States  circuit  judge  for  the Dis- 
trict of ,  on  the day  of ,  190. .,  with  a  copy  of 

which  said  order  and  the  papers  upon  which  it  was  granted,  you  are 
herewith  served. 


Solicitor  for  Complainant. 
To  the  INTERSTATE  COMMERCE  COMMISSION, 
Washington,  D.  C. 


No.  17. — Notice  of  order,  why  injunction  should  not  issue  * 

(CAPTION) 

To  the  Interstate  Commerce  Commission: 

You  are  hereby  notified  that  in  the  above-entitled  cause  a  bill  has 
been  filed  in  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of ,  wherein  the  above-named  complainants  pray  a  decree 

of  said  court,  setting  aside  and  annulling  that  certain  order  entered 
by  you,  the  said  Interstate  Commerce  Commission,  on  or  about  the 

day  of ,  190 . . ,  in  that  certain  proceeding  then  pending 

before  you  known  as  No ,  wherein  the association  were 

complainant  and  the Railway  Company  and  the Rail- 
road were  respondents. 

You  are  hereby  notified  that  on  the day  of ,  190 . . ,  at 

10  o'clock  in  the  forenoon,  before  the  said  Court,  at  the  Federal  court 
room  in  the  city  of  ,  State  and  District  of  ,  the  com- 
plainants in  said  suit  will  apply  to  said  Court  for  a  temporary  or  in- 
terlocutory order  suspending  the  above  order  entered  by  you,  as 
aforesaid,  and  enjoining  the  enforcement  thereof,  said  application  to 
be  based  upon  the  bill  of  complainant,  duly  verified,  a  copy  of  which 
is  attached  hereto. 

8  Adapted  from  the  D.  L.  &  W.  E.  Co.  v.  I.  C.  C.,  in  the  Circuit  Court  of  the 
United  States  for  the  Southern  District  of  New  York,  June,  1907. 


RULES  OF  PRACTICE  BEFORE  THE  COMMISSION 


(Eevised,  amended,  and  adopted  April  9,  1908) 

I. — Public  sessions1 

The  general  sessions  of  the  Commission  for  hearing  contested  cases, 
including  oral  argument,  will  be  held  at  its  office  in  the  American 
Bank  Building,  No.  1317  F  street  NW.,  Washington,  D.  C.,  and  the 
two  weeks  beginning  with  the  first  Monday  in  each  month  are  set 
aside  for  that  purpose. 

Special  sessions  may  be  held  at  other  places  as  ordered  by  the  Com- 
mission. 

II. — Parties  to  cases' 

Any  person,  firm,  company,  corporation,  or  association,  mercantile, 
agricultural,  or  manufacturing  society,  body  politic  or  municipal  or- 
ganization, or  any  common  carrier,  or  the  railroad  commissioner  or 
commission  of  any  State  or  Territory,  may  complain  to  the  Commis- 
sion by  petition,  of  anything  done,  or  omitted  to  be  done,  in  viola- 
tion of  the  provisions  of  the  act  to  regulate  commerce  by  any  com- 
mon carrier  or  carriers  or  other  parties  subject  to  the  provisions  of 
said  act.  Where  a  complaint  relates  to  the  rates,  regulations,  or  prac- 
tices of  a  single  carrier,  no  other  carrier  need  be  made  a  party,  but 
if  it  relates  to  matters  in  which  two  or  more  carriers,  engaged  in 
transportation  by  continuous  carriage  or  shipment,  are  interested, 
the  several  carriers  participating  in  such  carriage  or  shipment  are 
proper  parties  defendant. 

Where  a  complaint  relates  to  rates,  regulations,  or  practices  of  car- 
riers operating  different  lines,  and  the  object  of  the  proceeding  is  to 
secure  correction  of  such  rates,  regulations  or  practices  on  each  of  said 
lines,  all  the  carriers  operating  such  lines  must  be  made  defendants. 

When  the  line  of  a  carrier  is  operated  by  a  receiver  or  trustee, 
both  the  carrier  and  its  receiver  or  trustee  should  be  made  defendants 
in  cases  involving  transportation  over  such  line. 

Persons  or  carriers  not  parties  may  petition  in  any  proceeding  for 
leave  to  intervene  and  be  heard  therein.  Such  petition  shall  set 
forth  the  petitioner's  interest  in  the  proceeding.  Leave  granted  on 
such  application  shall  entitle  the  intervener  to  appear  and  be  treated 
as  a  party  to  the  proceeding,  but  no  person  not  a  carrier  who  inter- 
venes in  behalf  of  the  defense  shall  have  the  right  to  file  an  answer 
or  otherwise  become  a  party,  except  to  have  notice  of  and  appear 

1  See   section   15. 

'As  to  parties  complainants,  see  section  95;  parties  defendant,  see  section  99; 
interveners,  see  section  103. 

374 


RULES  OP  PRACTICE  375 

at  the  taking  of  testimony,  produce  and  cross-examine  witnesses,  and 
be  heard,  in  person  or  by  counsel,  on  the  argument  of  the  case. 

III. — Complaints 8 

Complaints  must  be  by  petition  setting  forth  briefly  the  facts 
claimed  to  constitute  a  violation  of  the  law.  The  name  of  the  car- 
rier or  carriers  complained  against  must  be  stated  in  full,  and  the  ad- 
dress of  the  petitioner,  with  the  name  and  address  of  his  attorney  or 
counsel,  if  any,  must  appear  upon  the  petition.  The  petition  need  not 
be  verified.  The  complainant  must  furnish  as  many  copies  of  the  peti- 
tion as  there  may  be  parties  complained  against  to  be  served  and  three 
additional  copies  for  the  use  of  the  Commission. 

The  Commission  will  cause  a  copy  of  the  petition,  with  notice  to 
satisfy  or  answer  the  same  within  a  specified  time,  to  be  served  per- 
sonally or  by  mail,  in  its  discretion,  upon  each  defendant. 

IV. — Answers  * 

A  defendant  must  answer  within  twenty  days  from  the  date  of  the 
notice  above  provided  for,  but  the  Commission  may,  in  a  particular 
case,  require  the  answer  to  be  filed  within  a  shorter  time.  The  time 
prescribed  in  any  case  may  be  extended,  upon  good  cause  shown,  by 
the  Commission.  The  original  answer  must  be  filed  with  the  secre- 
tary of  the  Commission  at  its  office  in  Washington,  and  a  copy  thereof 
at  the  same  time  served  by  the  defendant,  personally  or  by  mail,  upon 
the  complainant,  who  must  forthwith  notify  the  secretary  of  its  re- 
ceipt. The  answer  must  specifically  admit  or  deny  the  material  alle- 
gations of  the  petition,  and  also  set  forth  the  facts  which  will  be  re- 
lied upon  to  support  any  such  denial.  If  a  defendant  shall  make 
satisfaction  before  answering,  a  written  acknowledgment  thereof, 
showing  the  character  and  extent  of  the  satisfaction  given,  must  be 
filed  by  the  complainant,  and  in  that  case  the  fact  and  manner  of 
satisfaction,  without  other  matter,  may  be  set  forth  in  the  answer. 
If  satisfaction  be  made  after  the  filing  and  service  of  an  answer, 
such  written  acknowledgment  must  also  be  filed  by  the  complainant, 
and  a  supplemental  answer  setting  forth  the  fact  and  manner  of  satis- 
faction must  be  filed  by  the  defendant. 

V. — Notice  in  nature  of  demurrer6 

A  defendant  who  deems  the  petition  insufficient  to  show  a  breach  of 
legal  duty  may,  instead  of  answering  or  formally  demurring,  serve 

8  For  the  essential  allegations  in  a  complaint,  see  sections  74,  75,  76 ;  for  forms 
of  complaints,  see  Appendix. 

*  For  practice  relating  to  answer,  see  sections  104-108. 
5  See  section  106. 


376  EULES  OP  PRACTICE 

on  the  complainant  notice  of  hearing  on  the  petition ;  and  in  such  case 
the  facts  stated  in  the  petition  will  be  deemed  admitted.  A  copy  of 
the  notice  must  at  the  same  time  be  filed  with  the  secretary  of  the 
Commission.  The  filing  of  an  answer,  however,  will  not  be  deemed  an 
admission  of  the  sufficiency  of  the  petition,  but  a  motion  to  dismiss 
for  insufficiency  may  be  made  at  the  hearing. 

VI. — Service  of  papers9 

Copies  of  notices  or  other  papers  must  be  served  upon  the  adverse 
party  or  parties,  personally  or  by  mail,  and  when  any  party  has 
appeared  by  attorney  service  upon  such  attorney  shall  be  deemed 
proper  service  upon  the  party. 

VII. — Amendments  * 

Upon  application  of  any  party,  amendments  to  any  petition  or  an- 
swer, in  any  proceeding  or  investigation,  may  be  allowed  by  the  Com- 
mission, in  its  discretion. 

VIII. — Adjournments  and  extensions  of  time 

Adjournments  and  extensions  of  time  may  be  granted  upon  the  ap- 
plication of  any  party,  in  the  discretion  of  the  Commission. 

IX. — Stipulations 

The  parties  to  any  proceeding  or  investigation  before  the  Com- 
mission may,  by  stipulation  in  writing  filed  with  the  secretary,  agree 
upon  the  facts,  or  any  portion  thereof,  involved  in  the  controversy, 
which  stipulation  shall  be  regarded  and  used  as  evidence  on  the  hear- 
ing. It  is  desired  that  the  facts  be  thus  agreed  upon  whenever 
practicable. 

X. — Hearings 8 

Upon  issue  being  joined  by  the  service  of  an  answer  or  notice  of 
hearing  on  the  petition,  the  Commission  will  assign  a  time  and  place 
for  hearing  the  case,  which  will  be  at  its  office  in  Washington,  un- 
less otherwise  ordered.  Witnesses  will  be  examined  orally  before  the 
Commission,  unless  their  testimony  be  taken  or  the  facts  be  agreed 
upon  as  provided  for  in  these  rules.  The  complainant  must  in  all 
cases  establish  the  facts  alleged  to  constitute  a  violation  of  the  law, 
unless  the  defendant  admits  the  same  or  fails  to  answer  the  petition. 
The  defendant  must  also  prove  facts  alleged  in  the  answer,  unless 

"See  sections  109,  115,  118. 
T  Bee  section  85. 
•See  section  114. 


RULES  OF  PRACTICE  377 

admitted  by  the  petitioner,  and  fully  disclose  its  defense  at  the 
hearing. 

In  case  of  failure  to  answer,  the  Commission  will  take  such  proof  of 
the  facts  as  may  be  deemed  proper  and  reasonable,  and  make  such 
order  thereon  as  the  circumstances  of  the  case  appear  to  require. 

Cases  may  be  heard  by  one  or  more  members  of  the  Commission,  or 
by  a  special  agent  or  examiner,  as  ordered  by  the  Commission.  When 
testimony  is  directed  to  be  taken  by  a  special  agent  or  examiner,  such 
officer  shall  have  power  to  administer  oaths,  examine  witnesses,  and 
receive  evidence,  and  shall  make  report  thereof  to  the  Commission. 

All  cases  shall  be  orally  argued  in  Washington,  D.  C.,  or  submitted 
upon  briefs,  unless  otherwise  ordered  by  the  Commission. 

XI. — Depositions ' 

The  testimony  of  any  witness  may  be  taken  by  deposition,  at  the 
instance  of  a  party,  in  any  case  before  the  Commission,  and  at  any 
time  after  the  same  is  at  issue.  The  Commission  may  also  order  testi- 
mony to  be  taken  by  deposition,  in  any  proceeding  or  investigation 
pending  before  it,  at  any  stage  of  such  proceeding  or  investigation. 
Such  depositions  may  be  taken  before  any  authorized  special  agent 
or  examiner  of  the  Commission,  judge  of  any  court  of  the  United 
States,  or  any  commissioner  of  a  circuit  or  any  clerk  of  a  district  or 
circuit  court,  or  any  chancellor,  justice,  or  judge  of  a  supreme  or  su- 
perior court,  mayor  or  chief  magistrate  of  a  city,  judge  of  a  county 
court,  or  court  of  common  pleas  of  any  of  the  United  States,  or  any 
notary  public,  not  being  of  counsel  or  attorney  to  either  of  the  parties 
or  otherwise  interested  in  the  proceeding  or  investigation.  Reasonable 
notice  must  be  given  in  writing  by  the  party  or  his  attorney  propos- 
ing to  take  such  deposition  to  the  opposite  party  or  his  attorney  of 
record,  which  notice  shall  state  the  name  of  the  witness  and  the  time 
and  place  of  the  taking  of  his  deposition,  and  a  copy  of  such  notice 
shall  be  filed  with  the  secretary  of  the  Commission. 

When  testimony  is  to  be  taken  on  behalf  of  a  common  carrier  in 
any  proceeding  instituted  by  the  Commission  on  its  own  motion, 
reasonable  notice  thereof  in  writing  must  be  given  by  such  carrier  to 
the  secretary  of  the  Commission. 

Every  person  whose  deposition  is  taken  shall  be  cautioned  and 
sworn  (or  may  affirm,  if  he  so  request)  to  testify  the  whole  truth, 
and  shall  be  carefully  examined.  His  testimony  shall  be  reduced  to 
writing,  which  may  be  typewriting,  by  the  magistrate  taking  the 
deposition,  or  under  his  direction,  and  shall,  after  it  has  been  reduced 
to  writing,  be  subscribed  by  the  witness. 

•  See  section  143. 


378  RULES  OF  PRACTICE 

If  a  witness  whose  testimony  may  be  desired  to  be  taken  by  deposi- 
tion be  in  a  foreign  country,  the  deposition  may  be  taken  before  an  of- 
ficer or  person  designated  by  the  Commission,  or  agreed  upon  by  the 
parties  by  stipulation  in  writing  to  be  filed  with  the  secretary.  All 
depositions  must  be  promptly  filed  with  the  secretary. 

XII. — Witnesses  and  Subpoenas™ 

Subpoenas  requiring  the  attendance  of  witnesses  from  any  place 
in  the  United  States  to  any  designated  place  of  hearing,  for  the 
purpose  of  taking  the  testimony  of  such  witnesses  orally  before  one 
or  more  members  of  the  Commission,  or  an  authorized  special  agent 
or  examiner  of  the  Commission,  or  by  deposition,  will,  upon  the  ap- 
plication of  either  party,  or  upon  the  order  of  the  Commission  di- 
recting the  taking  of  such  testimony,  be  issued  by  any  member  of  the 
Commission. 

Subpoenas  for  the  production  of  books,  papers,  or  documents  (un- 
less directed  to  issue  by  the  Commission  upon  its  own  motion)  will 
only  be  issued  upon  application  in  writing;  and  when  it  is  sought  to 
compel  witnesses,  not  parties  to  the  proceeding,  to  produce  such 
documentary  evidence,  the  application  must  be  sworn  to  and  must 
specify,  as  nearly  as  may  be,  the  books,  papers,  or  documents  desired ; 
that  the  same  are  in  the  possession  of  the  witness  or  under  his  control ; 
and  also  by  facts  stated,  show  that  they  contain  material  evidence  nec- 
essary to  the  applicant.  Applications  to  compel  a  party  to  the  pro- 
ceeding to  produce  books,  papers,  or  documents  need  only  set  forth  in 
a  general  way  the  books,  papers,  or  documents  desired  to  be  produced, 
and  that  the  applicant  believes  they  will  be  of  service  in  the  determina- 
tion of  the  case. 

Witnesses  whose  testimony  is  taken  orally  or  by  deposition,  and 
the  magistrate  or  other  officer  taking  such  depositions,  are  severally 
entitled  to  the  same  fees  as  are  paid  for  like  services  in  the  courts 
of  the  United  States,  such  fees  to  be  paid  by  the  party  at  whose  in- 
stance the  testimony  is  taken.11 

XIII. — Documentary  evidence  u 

"Where  relevant  and  material  matter  offered  in  evidence  is  embraced 
in  a  report,  tariff,  rate  sheet,  classification,  book,  pamphlet,  written 
or  printed  statement,  or  document  of  any  kind  containing  other  mat- 
ter not  material  or  relevant  and  not  intended  to  be  put  in  evidence, 

10  See  Chapter  VII. 

11  Fees  of  witnesses  are  fixed  by  law  at  $1.50  for  each  day's  attendance  at  the 
place  of  hearing  or  of  taking  depositions,  and  5  cents  per  mile  for  going  to  said 
place  from  his  place  of  residence  and  5  cents  per  mile  for  returning  therefrom. 
(See  section  145.) 

18  See  section  139. 


RULES  OF  PRACTICE  379 

such  report,  etc.,  in  whole,  shall  not  be  received  or  allowed  to  be 
filed  in  a  cause  on  hearing  before  this  Commission  or  at  any  time 
during  the  pendency  thereof,  but  counsel  or  other  party  offering  the 
same  shall  also  present  in  convenient  and  proper  form  for  filing  a 
copy  of  such  material  and  relevant  matter,  and  that  only  shall  be  re- 
ceived and  allowed  to  be  filed  as  evidence  and  made  part  of  the 
record  in  such  cause;  provided,  however,  that,  if  practicable,  such 
matter  may  be  read  and  taken  down  by  the  reporter  and  thus  made 
part  of  the  record. 

XIV.— Briefs 13 

Unless  otherwise  specially  ordered,  printed  briefs  shall  be  filed  on 
behalf  of  the  parties  in  each  case.  The  brief  for  complainant  and 
the  brief  or  briefs  for  the  defense  shall  contain  an  abstract  of  the 
evidence  relied  upon  by  the  party  filing  the  same,  and  in  such  abstract 
reference  shall  be  made  to  the  pages  of  the  record  wherein  the  evi- 
dence appears.  The  abstract  of  evidence  shall  follow  the  statement 
of  the  case  and  precede  the  argument.  Briefs  shall  be  filed  with  the 
Commission  and  served  upon  the  adverse  party  or  parties  by  the 
complainant  within  fifteen  days  after  the  taking  of  testimony  has  been 
concluded,  by  the  defendant  or  defendants  within  ten  days  there- 
after, and  the  complainant  shall  have  five  days'  additional  time  for 
reply.  A  shorter  time  or  different  apportionment  not  involving  great- 
er time  may  be  specially  ordered  in  any  case. 

Briefs  shall  be  printed  in  12-point  type,  on  antique  finish  paper, 
5%  inches  wide  by  9  inches  long,  with  suitable  margins,  double-leaded 
text  and  single-leaded  citations. 

Where  the  case  is  assigned  for  oral  argument  all  briefs  shall  be 
filed  and  served  at  least  five  days  before  such  argument.  All  briefs 
shall  be  filed  with  the  secretary  and  shall  be  accompanied  by  notice 
showing  service  upon  the  adverse  party.  Fifteen  copies  of  each 
brief  shall  be  filed  for  the  use  of  the  Commission. 

All  parties  will  be  required  to  comply  strictly  with  this  rule,  and 
except  for  good  cause  shown  no  extension  will  be  allowed. 

XV. — Rehearings lt 

Applications  for  reopening  a  case  after  final  submission,  or  for  re- 
hearing after  decision  made  by  the  Commission,  must  be  by  petition, 
and  must  state  specifically  the  grounds  upon  which  the  application  is 
based.  If  such  application  be  to  reopen  the  case  for  further  evidence, 
the  nature  and  purpose  of  such  evidence  must  be  briefly  stated,  and 
the  same  must  not  be  merely  cumulative.  If  the  application  be  for 

13  See  section  115. 
"  See  section  152. 


_* 
.'» 


380  RULES  OF  PRACTICE 

a  rehearing,  the  petition  must  specify  the  findings  of  fact  and  con- 
clusions of  law  claimed  to  be  erroneous,  with  a  brief  statement  of  the 
grounds  of  error;  and  when  any  decision,  order,  or  requirement  of 
the  Commission  is  sought  to  be  reversed,  changed,  or  modified  on 
account  of  facts  and  circumstances  arising  subsequent  to  the  hearing, 
or  of  consequences  resulting  from  compliance  with  such  decision, 
order,  or  requirement  which  are  claimed  to  justify  a  reconsideration 
of  the  case,  the  matters  relied  upon  by  the  applicant  must  be  fully 
set  forth. 

XVI. — Printing  of  pleadings,  etc. 

Pleadings,  depositions,  and  other  papers  of  importance  shall  be 
printed  or  in  typewriting,  and  when  not  printed  only  one  side  of  the 
paper  shall  be  used. 

XVII. — Copies  of  papers  or  testimony  * 

Copies  of  any  report,  decision,  order,  or  requirement  of  the  Com- 
mission will  be  furnished  without  charge  upon  application  to  the 
secretary  by  any  person  or  carrier  party  to  the  proceeding.18 

One  copy  of  the  testimony  will  be  furnished  by  the  Commission  for 
the  use  of  the  complainant  and  one  copy  for  the  use  of  the  defendant, 
without  charge;  and  when  two  or  more  complainants  or  defendants 
have  appeared  at  the  hearing,  such  complainants  or  defendants  must 
designate  to  whom  the  copy  for  their  use  shall  be  delivered." 

XVIII. — Compliance  with  orders™ 

Upon  the  issuance  of  an  order  against  any  defendant  or  defend- 
ants, after  hearing,  investigation,  and  report  by  the  Commission,  such 
defendant  or  defendants  must  promptly  notify  the  secretary  of  the 
Commission,  upon  the  date  when  such  order  becomes  effective,  as  to 
whether  such  defendant  or  defendants  has  complied  or  not  with  the 
provisions  of  said  order;  and  when  a  change  in  rates  is  required, 
such  notice  must  be  given  in  addition  to  the  filing  of  a  schedule  or 
tariff  showing  such  change  in  rates. 

"  See  section  117. 

16  This  rule  applies  as  well  to  copies  of  tariffs  (if  not  too  lengthy),  and  other 
papers  requiring  the  certification  of  the  Secretary  of  the  Commission,  in  order 
that  they  be  introduced  in  evidence  before  the  courts. 

"  By  custom  the  principal  complainant  and  the  first  named  defendant  are 
entitled  to  copies  of  the  testimony. 

"For  the  several  kinds  of  orders,  see  section  124;  for  proceedings  after  order 
issued,  see  Chapter  VIII. 


RULES  OP  PRACTICE  381 

XIX. — Applications  l>y  carriers  under  proviso  clause  of  fourth  sec- 
tion™ 

Any  common  carrier  may  apply  to  the  Commission,  under  the  pro- 
viso clause  of  the  fourth  section,  for  authority  to  charge  for  the  trans- 
portation of  like  kind  of  property  less  for  a  longer  than  for  a  shorter 
distance  over  the  same  line,  in  the  same  direction,  the  shorter  being 
included  within  the  longer  distance.  Such  application  shall  be  by 
petition,  which  shall  specify  the  places  and  traffic  involved,  the  rates 
charged  on  such  traffic  for  the  shorter  and  longer  distances,  the  car- 
riers other  than  the  petitioner  which  may  be  interested  in  the  traf- 
fic, the  character  of  the  hardship  claimed  to  exist,  and  the  extent 
of  the  relief  sought  by  the  petitioner.  Upon  the  filing  of  such  a  peti- 
tion, the  Commission  will  take  such  action  as  the  circumstances  of  the 
case  seem  to  require. 

XX. — Information  to  parties 

The  secretary  of  the  Commission  will,  upon  request,  advise  any 
party  as  to  the  form  of  petition,  answer,  or  other  paper  necessary  to 
be  filed  in  any  case,  and  furnish  such  information  from  the  files  of 
the  Commission  as  will  conduce  to  a  proper  presentation  of  facts  ma- 
terial to  the  controversy. 

XXI. — Address  of  the  Commission 

All  complaints  concerning  anything  done  or  omitted  to  be  done  by 
any  common  carrier,  and  all  petitions  or  answers  in  any  proceeding, 
or  applications  in  relation  thereto,  and  all  letters  and  telegrams  for 
the  Commission,  must  be  addressed  to  Washington,  D.  C.,  unless  other- 
wise specially  directed. 

19  See  section  121. 


METHODS  OF  ASCERTAINING  COST  OF  CARRIAGE 


The  purpose  of  this  paper  is  to  consider  the  several  methods  which 
have  been  used  by  tribunals  to  ascertain  the  cost  of  transporting 
freight — that  cost  being  the  cost  to  the  carrier. 

It  is  assumed,  first  of  all,  that  charges  for  transportation  should 
bear  some  relation  to  the  cost  of  transportation.  What  this  relation 
shall  be,  and  whether  or  not  cost  shall  exceed  charges  or  vice  versa, 
we  shall  not  now  attempt  to  concern  ourselves  with;  we  simply  as- 
sume the  fact  that  some  relation  should  exist  between  these  figures 
when  ascertained. 

It  may  be  argued  that,  from  a  legal  point  of  view,  the  cost  of  trans- 
porting goods  having  been  once  obtained,  we  are  scarcely  wiser  than 
before.  The  Supreme  Court  of  the  United  States  has  held  that  as  a 
matter  of  law,  it  is  improper,  in  considering  the  reasonableness  of  a 
rate,  to  make  a  comparison  of  the  intra-state  rates  of  two  States,  and 
it  is  likewise  improper,  as  a  matter  of  law,  to  compare  the  intra-state 
rates  of  one  State  with  the  rates  apply  on  interstate  traffic  originating 
in,  destined  to,  or  passing  through  the  State  which  we  have  under 
consideration.  However  this  may  be  as  a  matter  of  law,  certain  it  is, 
that  as  a  matter  of  business,  no  stronger  argument  can  be  adduced 
than  to  show  by  mathematical  process  that  the  rates  of  one  State  are 
greater  or  less  than  those  of  another,  or  that  the  local  State  rates  are 
very  much  more  than  the  interstate  rates  for  traffic  which,  in  its  tran- 
sit, enters  the  State  one  may  be  considering  (Smith  v.  Ames,  169  U. 
S.,  466). 

We  shall  further  assume  that  there  has  been  determined  and  crys- 
talized  into  currency,  what  we  mean  by  the  term  "fair  valuation"  of 
the  carrier's  property.  We  are  supposed  to  have  agreed  to  consider 
some  figure  which  may  not  be  entirely  dependent  upon  any  one,  but 
in  fact  an  inference,  if  you  please,  from  all  of  the  following  items: 
the  cost  of  construction,  the  cost  of  reproduction,  the  valuation  as  a 
going  concern,  the  valuation  of  the  services  of  the  intrepreneur ;  in 
short,  we  have  placed  in  figures  the  "fair  valuation"  of  the  carriers' 
property  in  accordance  with  the  rules  of  law,  the  demands  of  jus- 
tice, and  the  requirements  of  good  business.1 

1  The  ' '  fair  valuation ' '  of  the  carrier 's  property  must  be  taken  into  considera- 
tion in  determining  the  reasonableness  of  its  rates  and  charges.  The  elements 
which  must  be  taken  into  consideration  to  ascertain  the  "fair  valuation"  have 
been  named  by  the  Supreme  Court,  but  no  definite  mathematical  rule  by  which 
to  crystalize  the  "fair  valuation"  into  currency  has  as  yet  been  expressed. 
The  elements  are  to  be  found  in  Smyth  v.  Ames  (169  U.  S.,  466).  Upon  the 
general  subject  concerning  the  necessity  for  considering  the  "fair  valuation"  of 
property  as  an  element  of  reasonable  charges,  see  Lindsley:  "Bate  Regulation  of 
Gas  and  Electric  Lighting." 

382 


COST  OF  CARRIAGE  383 

One  other  assumption,  and  that  is  that  the  carrier  has  given  us 
upon  oath  such  testimony  as  we  shall  have  called  for. 

It  should  be  remembered  in  considering  this  matter  that  cases  in- 
volving the  cost  of  traffic  to  the  carrier  may  take  either  one  or  two 
forms,  namely,  of  the  schedule  as  a  whole,  or  of  a  particular  com- 
modity. If  we  consider  the  schedule  as  a  whole,  we  must  perforce 
conclude  that  we  have  simply  arrived  at  the  beginning  when  we  get 
our  final  figures,  for  we  shall  then  be  compelled  to  determine  what 
relation  each  of  the  8,000  articles  in  the  classification  shall  bear  to 
this  average  cost.  If,  on  the  contrary,  we  consider  the  cost  of  trans- 
porting a  particular  article,  we  shall  then  be  under  the  necessity  of 
determining  what  relation  should  subsist  between  the  charges  to  be 
made  for  transporting  this  particular  article  and  the  cost  of  its  trans- 
portation, and,  if  we  are  to  aim  at  completeness,  the  relation  between 
the  cost  of  transporting  this  article  and  others  or  the  relative  charge 
to  be  made  for  them. 

Cases  requiring  the  ascertainment  of  the  cost  of  transporting  freight 
per  unit  arise  in  one  of  two  ways;  either  a  statute  or  an  order  of  a 
railroad  commission  has  prescribed  a  schedule  of  rates  or  a  prelim- 
inary investigation  to  ascertain  the  cost  precedes  the  making  of  such 
a  schedule. 

One  of  the  earliest  cases  in  which  it  was  attempted  to  ascertain  the 
cost  of  transportation  was  the  case  of  Smyth  v.  Ames  (169  U.  S., 
466). 

In  that  case  the  legislature  of  Nebraska  had  prescribed  a  schedule 
of  rates  applicable  to  the  State  tonnage  moved  upon  all  the  carriers 
operating  within  that  Commonwealth.  The  facts  before  the  courts 
were  as  follows :  By  expert  testimony  it  was  said  that  the  legislature- 
made  rates  reduced  the  charges  upon  freight  traffic  29^  per  cent.; 
it  was  in  evidence  from  expert  witnesses  that  the  cost  of  moving  the 
purely  intrastate  traffic  was  from  10  to  25  per  cent,  more  than  the  cost 
of  moving  the  interstate  traffic,  the  court  assumed  that  10  per  cent, 
increase  was  a  reasonable  one;  figures  were  introduced  showing  oper- 
ating expenses  and  receipts,  number  of  passengers  carried,  the  tons 
of  freight,  and  the  mileage  over  which  freight  was  transported. 

With  such  evidence  at  hand,  after  separating  the  passenger  traf- 
fic from  the  freight  traffic,  the  court  used  the  following  method: 
Dividing  the  cost  of  freight  operation  by  the  receipts  from  freight 
operation,  a  result  was  produced  of  66.24.  These  figures  (66.24) 
were  said  to  show  the  percentage  which  the  operating  expenses  bore 
to  the  receipts  upon  all  the  traffic  carried  by  the  railroad,  and  hence 
represented  the  cost  of  carrying.  As  the  evidence  showing  that  the 
cost  of  doing  the  intrastate  freight  business  exceeded  the  cost  of  doing 
all  the  business  10  per  cent.,  this  last  figure  was  added  to  the  quotient 


384  COST  OF  CARRIAGE 

heretofore  obtained,  making  a  total  of  76.24.  The  legislature-made 
rates  would  reduce  (according  to  the  testimony)  the  receipts  291/£> 
per  cent.  That  is  to  say,  for  each  $100  of  receipts,  if  it  be  assumed 
that  the  quantity  of  tonnage  will  not  change  (and  the  court  made 
such  assumption)  the  carrier  would  receive  $70.50.  Thus,  under  the 
legislature-made  rates  (and  it  being  assumed  that  there  would  be  no 
increase  in  tonnage)  the  carrier  would  expend  in  operating  expenses 
$76.24  and  receive  in  return  $70.50.  Of  course,  upon  such  a  basis 
the  court  held  the  legislature-made  rates  of  Nebraska  unconstitutional, 
for  the  proposed  rates  would  not  be  remunerative. 

The  fallacy  of  the  mathematics  of  this  case  can  be  seen  from  two 
points,  even  if  we  concede  that  there  will  be  no  increase  or  decrease 
in  the  yearly  tonnage  by  reason  of  the  change  of  rates  or  commercial 
conditions. 

1.  The  percentage  which  the  operating  expenses  bear  to  the  receipts 
does  not  mean  anything ;  it  simply  shows  the  relation  between  the  two 
items;  they  both  might  be  relatively  high  or  low,  or  one  or  the  other 
may  be  entirely  disproportionate  to  fairness  or  good  management  or 
justice. 

2.  Again,  a  careful  consideration  of  the  exhibits  in  the  case  shows 
the  prospective  effect  of  the  proposed  reduction  of  rates  upon  several 
carriers.    If  this  change  of  rates  produces  a  reduction  for  one  carrier, 
it  is  fair  to  conclude  that  it  must  produce  a  reduction  for  another. 
And  so,  if  it  produce  a  reduction  for  one  carrier  in  a  single  year,  it 
must  produce  a  reduction  for  that  carrier  every  year.    Such,  however, 
is  not  found  to  be  the  case.     For  example,  the  Fremont  Company 
was  shown,  had  this  reduction  of  rates  been  applied  in  1891,  to  have 
gained,  while  seven  other  roads  would  have  lost;  and,  in  1892,  the 
Fremont  Company  would  have  lost  with  five  other  companies,  and  the 
Union  Pacific   (which  had  been  a  loser  the  year  before)   would  be- 
come a  gainer;  further,  the  Fremont  Company  in  1893  shifts  to  the 
other  side  of  the  line,  becoming  a  gainer  and  holding  the  Union  Pa- 
cific with  it,  while  five  other  companies  still  remain  losers.2 

Thus,  it  clearly  appears  that  there  must  be  some  error  in  the  mathe- 
matical method  of  this  case. 

2  The  statistics  cover  three  years,  1891,  1892,  and  1893.  The  companies  were 
the  Burlington,  St.  Paul,  Fremont,  Union  Pacific,  Omaha,  St.  Joseph,  Kansas 
City.  In  1891,  had  the  earnings  under  the  law  been  reduced,  according  to  the 
expert  testimony  (29i^  per  cent.)  the  several  companies  would  have  lost  from 
5.74  per  cent,  to  59.76  per  cent.,  except  the  Fremont  Company,  which  would  have 
gained  10.63  per  cent.  In  1892,  the  several  companies  would  have  lost  from  3.73 
per  cent,  to  32.62  per  cent.,  except  the  Union  Pacific  Company,  which  would  have 
gained  4.06  per  cent,  (the  year  before  this  company  would  have  lost  8.44  per 
cent).  In  1893,  the  several  companies  would  have  lost  from  1.55  per  cent,  to 
33.64  per  cent.,  except  the  Fremont  Company  and  the  Omaha  Company,  the  former 
gaining  6.84  per  cent,  and  the  latter  1.99  per  cent.  The  table  in  full  is  to  be 
found  in  169  U.  S.,  535. 


COST  OF  CARRIAGE  385 

The  Supreme  Court  had  occasion  to  consider  the  cost  of  transporta- 
tion in  the  so-called  South  Dakota  Case  (C.  M.  &  St.  P.  E.  Co.  v. 
Tompkins,  176  U.  S.,  171).  In  that  case  a  schedule  of  rates  had  been 
prescribed  by  the  railroad  commission  of  South  Dakota.  Here  the 
circuit  court  assumed  that  for  succeeding  years  the  tonnage  carried 
by  the  railroads  would  remain  substantially  the  same,  and  it  under- 
took to  separate  the  passenger  and  freight  business,  and  found  from 
the  testimony  that  the  gross  receipts  from  passenger  business,  had  the 
legislature-made  rates  been  in  effect,  would  be  reduced  15  per  cent., 
and  a  reduction  in  freight  charges  would  have  diminished  the  gross 
receipts  from  that  source  by  17  per  cent.  It  was  also  found  that  the 
cost  of  doing  the  business,  as  expressed  in  the  term  "operating  ex- 
penses," would  be  practically  the  same.  The  court  below  found  the 
value  of  the  particular  carrier's  (C.  M.  &  St.  P.  R.  Co.)  property  in 
South  Dakota  to  be  $10,000,000,s  but  it  was  held  that  it  was  not  fair  to 
consider  that  sum  as  employed  in  doing  the  local  business,  for  the  same 
property  was  employed  in  doing  the  interstate  business.  The  court 
below  also  found  that  the  true  way  to  determine  the  value  of  the  prop- 
erty which  is  employed  in  the  local  business  was  to  divide  the  total 
valuation  of  $10,000,000  according  to  the  proportion  that  existed  be- 
tween the  amount  of  gross  receipts  from  the  interstate  and  from  the 
local  business,  both  of  which  amounts  were  accurately  stated.*  Upon 
this  basis  of  division  it  was  found  that  the  value  of  the  property  em- 
ployed in  local  business  in  a  particular  year B  was  $1,900,000 ;  dividing 
this  amount  by  the  gross  receipts  from  local  business,  it  was  ascertain- 
ed that  these  receipts  represented  16.03  per  cent,  of  the  valuation.  The 
court  then  proceeded  upon  the  supposition  that  the  commission 's  sche- 
dule of  rates  had  been  enforced  during  the  year  it  had  been  consider- 
ing. Taking  the  supposed  reduced  earnings,  it  found  that  the  valua- 
tion of  the  carrier's  road  engaged  in  the  local  business  would  have 
been  $1,600,000,  and  upon  such  basis  that  the  gross  receipts  from  local 
business  (under  revised  schedules)  would  have  amounted  to  16.02 
per  cent,  of  the  valuation  of  the  property.  As  a  matter  of  law,  it 
was  held  that  the  variation  of  percentage  was  not  sufficient  to  justify 
a  declaration  that  the  reduced  rates  prescribed  by  the  commission  were 
unreasonable;  in  short,  the  court  below  was  of  the  opinion  that  the 
earning  capacity  of  the  road  was  so  slightly  reduced  that  it  could  not 
be  affirmed  that  the  new  rates  were  unreasonable. 

Commenting  upon  this  method  the  Supreme  Court  of  the  United 
States  suggests  that  there  must  be  some  fallacy  in  it,  for  the  reason 

3  This  fact  was  found  by  the  court  below,  notwithstanding  evidence  to  the 
effect  that  it  was  bonded  for  over  $19,000,000. 

*  The  receipts  from  local  and  interstate  business  were  ascertained  from  the 
testimony  of  the  carrier. 

5  The  court  considered  the  effect  of  the  statute  for  four  years. 


386  COST  OF  CARRIAGE 

that  while  the  new  schedule  would  reduce  the  actual  receipts  on 
freight  business  17  per  cent.,  the  earning  capacity  was  diminished 
only  one-tenth  of  1  per  cent.  "Such  a  result,"  says  the  court,  "in- 
dicates that  there  is  something  wrong  in  the  process  by  which  the  con- 
clusion is  reached."  To  show  the  fallacy  of  this  method  and  attempt 
to  ascertain  the  cost  of  transportation,  the  court  took  round  numbers : 
Suppose  the  total  value  of  the  property  in  South  Dakota  was  $10,000,000,  and 
the  total  receipts  from  both  interstate  and  local  business  were  $1,000,000,  one- 
half  from  each.  Then,  according  to  the  method  pursued  by  the  trial  court,  the 
value  of  the  property  used  in  earning  local  receipts  would  be  $5,000,000,  and  the 
per  cent,  of  receipts  to  value  would  be  10  per  cent.  The  interstate  receipts  being 
unchanged,  let  the  local  receipts  by  a  proposed  schedule  be  reduced  to  one-fifth 
of  what  they  had  been,  so  that  instead  of  receiving  $500,000  the  company  only 
receives  $100,000.  The  total  receipts  for  interstate  and  local  business  being  then 
$600,000,  the  valuation  of  $10,000,000,  divided  between  the  two,  would  give  to  the 
property  engaged  in  earning  interstate  receipts  in  round  numbers  $8,333,000, 
and  to  that  engaged  in  earning  local  receipts  $1,667,000.  But  if  $1,667,000 
worth  of  property  earns  $100,000  it  earns  6  per  cent.  In  other  words,  although 
the  actual  receipts  from  local  business  are  only  one-fifth  of  what  they  were,  the 
earning  capacity  is  three-fifths  of  what  it  was.  And  turning  to  the  other  side  of 
the  problem,  it  appears  that  if  the  value  of  the  property  engaged  in  interstate 
business  is  to  be  taken  as  $8,333,000,  and  it  earned  $500,000,  its  earning  capacity 
was  the  same  as  that  employed  in  local  business — 6  per  cent.  So  that  although 
the  rates  for  interstate  business  be  undisturbed,  the  process  by  which  the  trial 
court  reached  its  conclusion  discloses  the  same  reduction  in  the  earning  capacity 
of  the  property  employed  in  interstate  business  as  in  that  employed  in  local  busi- 
ness, in  which  the  rates  are  reduced.  Again,  in  another  way,  the  error  of  the 
court's  computation  is  manifested.  The  testimony  discloses  that  the  operating 
expenses  of  the  entire  system  during  each  of  the  four  years  were  over  60  per  cent, 
of  the  gross  receipts.  If  the  cost  of  doing  local  business  in  South  Dakota  was 
the  same  as  that  of  doing  the  total  business  of  the  company,  then  the  net  earn- 
ings of  that  local  business  would  not  exceed  40  per  cent,  of  the  gross  receipts. 
Eeduce  the  gross  receipts  15  per  cent. — and  the  reduction  by  the  defendants' 
rates  was  15  per  cent,  on  passengers  and  17  per  cent,  on  freight  business — it 
would  leave  only  25  per  cent,  of  the  gross  receipts,  as  what  might  be  called  net 
earnings,  to  be  applied  to  the  payment  of  interest  on  bonds  and  dividends  on 
stock.  But  the  testimony  shows  that  the  cost  of  doing  local  business  is  much 
greater  than  that  of  doing  through  business.  If  it  should  be  85  per  cent,  of  the 
gross  receipts  (and  there  was  testimony  tending  to  show  that  it  was  as  much 
if  not  more)  then  a  reduction  of  15  per  cent,  in  the  gross  receipts  would  leave 
the  property  earning  nothing  more  than  expenses  of  operation.  These  computa- 
tions show  that  the  method  which  the  court  pursued  was  erroneous,  and  that 
without  a  finding  as  to  the  cost  of  doing  the  local  business  it  is  impossible  to 
determine  whether  the  reduced  rates  prescribed  by  defendants  were  unreasonable 
or  not.' 

In  a  recent  case 7  before  the  Kentucky  Railroad  Commission,  an  at- 

6  The  decree  of  the  trial  court  dismissing  a  bill  to  restrain  the  enforcement  of 
a  schedule  of  maximum  rates  was  reversed,  but  the  court  in  its  opinion  recom- 
mended that  the  testimony  should  be  referred  to  some  competent  master,  general 
or  special,  to  make  finding  of  facts. 

T  The  Commonwealth  of  Kentucky  v.  the  L.  &  N.  E.  Co.,  before  the  Railroad 
Commission  of  Kentucky,  1906. 


COST  OF  CARRIAGE  387 

tempt  was  made  to  arrive  at  an  approximation  of  the  cost  to  a  car- 
rier for  doing  the  freight  service  in  that  State  during  the  year  1905 
upon  a  ton-mile  basis.  It  was  in  evidence  from  the  carrier  what 
amount  of  the  money  was  properly  chargeable  to  the  intrastate  freight 
traffic.  This  was  separated  by  the  carrier  into  two  parts,  one  charge- 
able to  haulage  or  transportation  and  the  other  to  services  other  than 
haulage  or  transportation,  such  as  terminal  charges.  It  was  de- 
cided that  the  total  of  the  amount  chargeable  for  haulage  is  fairly  ap- 
portionable  between  intra  and  inter  state  freight  upon  the  basis  of 
total  ton-miles.  The  charges  for  services  other  than  haulage  or  trans- 
portation was  said  to  be  fairly  apportionable  between  each  of  the 
two  classes  of  freight  based  upon  the  number  of  tons.  The  car- 
rier having  given  figures  as  to  the  average  length  of  haul  of  interstate 
and  intrastate  freight,  the  amount  chargeable  to  charges  other  than 
for  haulage  was  divided  by  the  number  of  tons  (inter  plus  intra 
state)  and  this  was  found  to  give  an  average  charge  per  ton  for  sta- 
tion loading  and  unloading,  advertising,  damage,  and,  in  fact,  all 
services  except  haulage  of  16.25  cents  per  ton.  This  amount  was  then 
divided  by  the  average  haul  of  the  State  traffic  and  produced  a  result 
of  0.1659  cent.  In  order  to  secure  a  comparison  between  the  inter  and 
intra  state  traffic  the  average  charge  per  ton  was  divided  by  the  aver- 
age haul  of  interstate  freight,  producing  a  result  of  0.1092  cent.  That 
is  to  say,  by  reason  of  the  difference  between  the  number  of  tons  of 
State  traffic  and  the  number  of  tons  of  interstate  traffic  hauled  by  the 
carrier,  and  the  variation  in  the  length  of  haul  between  these  two 
kinds  of  traffic,  there  is  chargeable  for  expenses  other  than  haulage 
0.1659  cent  on  the  local  traffic  and  0.1092  cent  on  the  inter  state 
traffic.8 

The  commission  then  proceeded  to  ascertain  the  cost  per  ton-mile 
for  haulage.  This  was  accomplished  by  dividing  the  operating  ex- 
penses for  the  State  traffic  by  the  number  of  ton-miles  of  State  traffic, 
which  produced  a  haulage  charge  per  ton  mile  of  0.3884  cent.  To  this 
amount  chargeable  for  haulage  (0.3884  cents)  was  added  the  cost  for 
charges  other  than  haulage  (0.1659  cent)  producing  the  fair  esti- 
mated cost  of  all  service  for  State  traffic  per  ton-mile,  0.5543  cent. 
By  the  same  method  the  interstate  cost  for  haulage  was  found  to  be 
0.4976  cent  per  ton-mile.  That  is  to  say,  the  cost  of  haulage  was  es- 
timated to  be  the  same  upon  State  traffic  as  upon  interstate  traffic, 
while  the  cost  for  stations  and  other  services  except  haulage,  is  more 
upon  intra  than  upon  inter  state  traffic." 

At  this  point  the  Kentucky  Bailroad  Commission  approached  the 

8  The  expenses  for  terminal  charges,  damage,  advertising,  etc.,  were  therefore 
51  per  cent,  more  on  intra-state  traffic  than  on  interstate  traffic. 

9  The  total  cost  upon  the  ton-mile  basis  on  intra-state  traffic  as  found  in  this 
case  is  11.4  per  cent,  more  than  on  interstate  traffic. 


388  COST  OF  CARRIAGE 

serious  question  of  the  value  of  the  physical  property  within  the 
State  and  the  amount  of  money  which  ought  to  be  earned  upon  it. 
The  commission  having  been  furnished  by  the  carrier  the  physical 
value  of  the  property  and  having  ascertained  the  rate  of  interest 
which  securities  of  this  kind  are  accustomed  to  produce,  the  quota- 
tions on  stocks  and  bonds  being  considered,  it  remained  to  ascertain 
how  the  fair  valuation  should  be  divided  so  that  one  portion  of  it 
should  produce  adequate  revenue  from  State  freight  and  another  por- 
tion produce  revenue  from  interstate  freight.  The  first  proposition 
is  to  separate  this  valuation  into  freight  and  passenger  business. 
While  the  Kentucky  commission  assumes  that  this  separation  must 
be  made,  it  does  not  seem  to  have  done  so.  Having  determined  the 
proper  total  amount  to  be  earned  by  the  carrier,  from  both  inter  and 
intra  state  business,  it  attempts  to  ascertain  what  shall  be  used  as  a 
basis  for  dividing  this  fund  equitably  as  between  the  two  kinds  of 
traffic.  "Certainly  neither  gross  earnings  nor  net  earnings  can  be  a 
satisfactory  basis  of  apportionment  of  these  charges  for  this  purpose, 
particularly  where  the  purpose  of  apportionment  is  to  determine  the 
propriety  of  the  rates  from  which  gross  earnings  and  net  earnings  re- 
sult. In  this  case  the  earnings  result  from  the  rates  in  question. 
This  annual  charge  for  valuation  is  in  a  sense  part  of  the  carrier's 
cost,  and  to  attempt  to  justify  the  apportionment  of  costs  by  the 
earnings  resulting  from  rates,  and  then  to  justify  the  rates  by  the  ap- 
portionment of  costs  based  on  the  earnings  resulting  from  the  rates, 
would  clearly  be  reasoning  in  a  circle.  Nor  can  any  suitable  basis  for 
apportionment  of  this  annual  charge  on  account  of  valuation  be  de- 
rived from  transportation  statistics  relating  to  passengers  and  freight, 
for  the  obvious  reason  that  there  is  no  common  transportation  unit, 
except  the  train-mile  or  car-mile,  and  the  use  of  the  train-mile  or  car- 
mile  would  give  no  help  in  apportioning  between  State  freight  and 
interstate  freight,  because  no  trains  are  devoted  solely  to  either  class 
of  freight,  nor  is  any  considerable  number  of  cars  assigned  exclusive- 
ly to  either  class  of  freight. 

"Plainly,  then,  we  have  left  only  the  operating  expenses  as  a  basis 
of  apportionment." 

Having  determined  that  the  operating  expenses  are  the  only  avail- 
able basis  for  apportionment,  and  being  in  possession  of  the  operating 
expenses  for  both  State  and  interstate  traffic  and  of  the  amount  of 
money  which  would  be  needed  to  pay  interest,  it  ascertained  that  the 
interest  fund  was  43.95  per  cent,  of  the  cost  of  operation.  It  then 
took  the  operating  expenses  chargeable  against  State  freight  which  it 
multiplied  by  43.95  to  ascertain  how  much  money  should  be  derived 
from  the  State  business  in  order  to  contribute  to  the  interest  fund; 


COST  OF  CARRIAGE  389 

that  contribution  was  found  to  be  $542,744.  This  sum  was  added  to 
the  State  operating  expenses  and  was  held  to  represent  the  fair 
amount  which  the  carrier  should  receive  from  State  traffic  because  it 
Included  the  two  elements  of  actual  cost  of  operation  and  a  surplus 
with  which  to  pay  interest. 

Commenting  upon  its  own  method  the  commission  said : 

"The  commission  does  not,  of  course,  undertake  to  say  that  the 
computations,  the  results  of  which  are  hereinbefore  set  forth,  are 
mathematically  accurate,  for  it  is  universally  conceded  that  any  exact 
statement  of  the  cost  to  a  carrier  for  performing  its  freight  service 
as  compared  with  its  passenger  service,  or  for  performing  a  part  of 
the  freight  service  as  compared  with  the  remainder,  can  not  be  made. 
The  commission  has  merely  done  the  best  it  could  with  the  figures 
and  facts  before  it,  but  it  has  endeavored  in  all  its  computations  to 
make  the  most  liberal  allowance  for  actual  valuation.  Yet,  with  all 
this,  we  have  a  result  showing  charges  by  this  carrier  for  intrastate 
traffic,  within  the  State  of  Kentucky,  which  are  more  than  $774,000, 
in  excess  of  just  and  reasonable  rates. ' ' 

From  the  adjudicated  court  cases  it  seems  reasonably  certain  that 
the  method  used  by  the  Supreme  Court  in  Smyth  v.  Ames  is  inac- 
curate, for  the  relation  which  operating  expenses  bear  to  gross  re- 
ceipts does  not  and  can  never  show  the  cost  of  transporting  the  com- 
modities. The  method  used  by  the  Circuit  Court  of  the  United  States 
for  the  District  of  South  Dakota  could  not  stand  the  tests  applied  by 
the  Supreme  Court  of  the  United  States,  which  tests,  it  will  be  re- 
called, were  different  from  the  method  formally  used  by  that  tribunal. 
The  method  used  by  the  Kentucky  Railroad  Commission  is  clearly 
more  elaborate  if  not  more  correct,  than  those  to  which  reference  has 
been  made  by  the  Supreme  Court. 

"While  the  method  of  the  Kentucky  Railroad  Commission  is  most 
elaborate,  yet  to  determine  with  mathematical  accuracy  the  cost  of 
traffic,  a  definite  method  has  not  as  yet  been  devised.  The  difficulty 
is  two-fold.  First,  on  the  one  line  of  road,  with  a  single  equipment, 
two  kinds  of  traffic  are  carried.  How  is  the  capital  to  be  separated 
for  the  purpose  of  producing  revenue  upon  these  two  kinds  of  traffic. 
Again,  the  method  used  by  the  Kentucky  commission  considers  the 
whole  schedule  of  rates,  rates  in  gross,  and  secures  its  results  in  fig- 
ures per  ton  per  mile.  In  short,  in  the  same  focus  it  takes  a  broad 
survey  of  all  kinds  of  commodities  in  the  two  kinds  of  traffic,  and 
microscopically  looks  at  the  smallest  possible  unit  of  measurement. 

10  For  the  Louisville  and  Nashville  Eailroad  and  some  other  carriers,  the  Com- 
mission prescribed  a  schedule  of  rates  based  upon  these  findings.  The  schedule 
covers  17  classes  and  distances  from  10  miles  and  less  to  450  miles  (by  5  mile 
steps  to  100  milea,  and  by  10  mile  steps  to  250  miles,  and  by  25  mile  steps  to 
450  miles). 


390  COST  OF  CAEEIAGE 

The  shipment  of  a  box  of  books  is  augmented  to  per  ton  per  mile ;  a 
shipment  of  a  carload  or  trainload  of  vegetables  is  reduced  to  the 
same  unit.  While  this  unit  may  be  used  in  mathematics,  it  can  be 
confidently  asserted  that  it  rarely,  if  ever,  enters  the  head  of  a 
traffic  manager  making  rates ;  ordinarily  he  does  not  consider  the  cost 
of  traffic,  for  he  does  not  know  it. 

The  difficulties  in  this  matter  seem  to  be  the  unwarranted  assump- 
tions, within  which  there  might  be  such  a  variation  as  to  cause  rates 
(single  or  as  a  schedule)  to  be  unreasonably  low  on  the  one  hand  or 
extortionate  on  the  other.  The  assumption  that  the  future  quantity 
of  traffic  will  remain  the  same,11  the  assumption  that  the  average  haul 
of  both  inter  and  intra  state  traffic  will  not  be  materially  different,  the 
assumption  that  operating  expenses  for  a  particular  year  are  reason- 
able, the  assumption  what  shall  constitute  fair  valuation  of  the  car- 
rier's property,  the  amount  of  tonnage  it  will  transport,  the  fair  rate 
of  return,  the  arbitrary  rule  that  all  parts  of  the  road  cost  the  same  to 
operate  per  unit,"  the  equally  arbitrary  rule  that  the  rate  of  return 
ought  to  be  the  same  for  all  roads  and  branches  of  roads,  that  the 
unit  of  per  ton  mile  is  a  safe  and  equitable  one,  that  any  unit  ought 
to  apply  to  the  8,000  articles  in  numerous  classes,  that  terminal  ex- 
penses are  the  same  for  all  classes  of  commodities,  that  the  haul  on 
interstate  traffic  costs  the  same  as  on  local  traffic,  and  finally,  but  by 
'  no  means  unimportant,  that  the  carrier  shall  give  us  correct  figures. 
These  assumptions  heretofore  made  may  and  may  not  be  true.  Until 
proven  correct,  we  cannot  hope  to  ascertain  to  a  mathematical  cer- 
tainty the  cost  of  transportation  to  the  carrier  by  any  of  the  methods 
considered  or  one  hereafter  to  be  devised. — Reprinted,  by  permission, 
from  the  Green  Bag,  March,  1907. 

WASHINGTON,  D.  C.,  February,  1907. 

u  It  was  said  by  Mr.  Justice  Brewer  in  Chicago  Grand  Trunk  Railway  Com- 
pany v.  Wellman  (143  U.  S.,  339),  "Must  it  be  declared,  as  matter  of  law,  that 
a  reduction  of  rates  necessarily  diminishes  income?  May  it  not  be  possible — 
indeed,  does  not  all  experience  suggest  the  probability —  that  a  reduction  in  rates 
will  increase  the  amount  of  business,  and,  therefore,  the  earnings?" 

These  suggestive  queries  were  quoted  and  approved  by  Mr.  Justice  Shiras  in 
St.  L.  &  S.  F.  E.  Co.  v.  Gill  (156  U.  S.,  648). 

12  It  is  curious  to  note  that  a  former  president  of  the  Louisville  and  Nashville 
Railroad  analyzed  the  cost  of  carrying  freight  on  the  main  line  and  on  each  of 
the  different  branches.  Mr.  Albert  Fink  summed  up  as  follows:  "A  careful  in- 
vestigation shows  that,  under  ordinary  conditions  under  which  transportation  ser- 
vice is  generally  performed,  the  cost  per  ton  mile  in  some  instances  may  not 
exceed  one-seventh  of  a  cent,  and  in  others  will  be  as  high  as  73  cents  per  ton 
mile  on  the  same  road."  That  is  to  say,  the  cost  may  vary  from  1  to  500.  It  is 
said  that  the  receipts  of  the  Paris  and  Lyons  Company  from  Paris  to  Marseilles, 
about  one-eighth  of  the  entire  trackage,  produces  one-half  the  net  earnings  of 
the  company. 


CORRECT  TITLES  OF  THE  LEADING  RAILROADS 


[Corrected  to  Sept.  1,  1908.] 


Aberdeen  and  Asheboro  Eailroad. 

Alabama  and  Vicksburg  Eailway. 

Alabama  Great  Southern  Eailroad. 

Ann  Arbor  Eailroad. 

Apalachicola  Northern  Eailroad. 

Arizona  and  New  Mexico  Eailway  Com- 
pany. 

Astoria  and  Columbia  Eiver  Eailway 
Company. 

Atchison,  Topeka  and  Santa  Fe  Eail- 
way. 

Atlanta  and  Birmingham  Air  Line  Eail- 
way. 

Atlanta  and  West  Point  Eailroad. 

Atlanta,  Birmingham  and  Atlantic  Eail- 
road. 

Atlantic  City  Eailroad. 

Atlantic  Coast  Line  Eailroad. 

Augusta  Southern  Eailroad. 

Baltimore  and  Ohio  Eailroad. 

Baltimore,  Chesapeake  and  Atlantic 
Eailway. 

Bangor  and  Aroostook  Eailroad. 

Beaumont  and  Great  Northern  Eailroad. 

Bellingham  Bay  and  British  Columbia 
Eailroad  Company. 

Bessemer  and  Lake  Erie  Eailroad. 

Boston  and  Maine  Eailroad. 

Buffalo  and  Susquehanna  Eailway. 

Buffalo,  Eochester  and  Pittsburg  Eail- 
way. 

Butte,  Anaconda  and  Pacific  Eailway. 

Canadian  Pacific  Eailway. 
Carolina  and  Northwestern  Eailway. 
Carolina,  Clinchfield  and  Ohio  Eailway. 
Central  Branch  Eailway  Company. 
Central  Indiana  Eailway. 
Central  of  Georgia  Eailway. 
Central  Eailroad  of  New  Jersey. 
Central  Vermont  Eailway. 
Charleston  and  Western  Carolina  Eail- 
way. 


Chattanooga  Southern  Eailroad. 

Chesapeake  and  Ohio  Eailway. 

Chicago  and  Alton  Eailroad. 

Chicago  and  Eastern  Illinois  Eailroad. 

Chicago  and  Erie  Eailroad. 

Chicago  and  Northwestern  Eailway 
Company. 

Chicago,  Burlington  and  Quincy  Eail- 
road Company. 

Chicago,  Cincinnati  and  Louisville  Eail- 
road. 

Chicago  Great  Western  Eailway  Com- 
pany. 

Chicago,  Indiana  and  Southern  Eail- 
road. 

Chicago,  Indianapolis  and  Louisville 
Eailway. 

Chicago,  Kalamazoo  and  Saginaw  Eail- 
way. 

Chicago,  Lake  Shore  and  Eastern  Eail- 
way Company. 

Chicago,  Milwaukee  and  St.  Paul  Eail- 
way Company. 

Chicago,  Peoria  and  St.  Louis  Eailway 
of  Illinois. 

Chicago,  Eock  Island  and  El  Paso  Eail- 
way Company. 

Chicago,  Eock  Island  and  Gulf  Eailway 
Company. 

Chicago,  Eock  Island  and  Pacific  Eail- 
way Company. 

Chicago,  St.  Paul,  Minneapolis  and 
Omaha  Eailway  Company. 

Chicago  Southern  Eailway  Company. 

Chicago  Terminal  Transfer  Eailroad 
Company. 

Cincinnati  and  Muskingum  Valley  Eail- 
road. 

Cincinnati,  Hamilton  and  Dayton  Eail- 
way. 

Cincinnati,  New  Orleans  and  Texas  Pa- 
cific Eailway. 

Cincinnati  Northern  Eailroad. 


391 


392 


TITLES  OF  RAILWAYS 


Cleveland,  Akron  and  Columbus  Bail- 
way. 

Cleveland,  Cincinnati,  Chicago  and  St. 
Louis  Bailway. 

Coal  and  Coke  Bailway. 

Colorado  and  Southern  Bailway  Com- 
pany. 

Colorado  and  Wyoming  Bailway  Com- 
pany. 

Colorado  Midland  Bailway  Company. 

Columbia  and  Puget  Sound  Bailroad 
Company. 

Columbia,  Newberry  and  Laurens  Bail- 
road. 

Copper  Bange  Bailroad. 

Corvallis  and  Eastern  Bailroad  Com- 
pany. 

Cumberland  and  Pennsylvania  Bailroad. 

Cumberland  Valley  Bailroad. 

Danville  and  Western  Bailway. 

Delaware  and  Eastern  Bailway. 

Delaware  and  Hudson  Company. 

Delaware,  Lackawanna  and  Western 
Bailroad. 

Denver  and  Bio  Grande  Bailroad  Com- 
pany. 

Denver,  Northwestern  and  Pacific  Bail- 
way. 

Detroit  and  Mackinac  Bailway. 

Detroit,  Grand  Haven  and  Milwaukee 
Bailway. 

Detroit,  Toledo  and  Ironton  Bailway. 

Des  Moines,  Iowa  Falls  and  Northern 
Bailway. 

Duluth  and  Iron  Bange  Bailroad. 

Duluth  and  Northern  Minnesota  Bail- 
way. 

Duluth  and  Northeastern  Bailroad. 

Duluth,  Missabe  and  Northern  Bailway. 

Duluth,  South  Shore  and  Atlantic  Bail- 
way. 

Dunkirk,  Allegheny  Valley  and  Pitts- 
burg  Bailroad. 

Eastern  Bailway  of  New  Mexico. 
Elgin,  Joliet  and  Eastern  Bailway. 
El  Paso  and  Southwestern  Company. 
Erie  Bailroad. 

Escanaba  and  Lake  Superior  Bailroad. 
Eureka  and  Palisade  Eailway  Company. 
Evansville  and  Indianapolis  Bailroad. 
Evansville  and  Terre  Haute  Bailroad. 


Florida  Central  Bailroad. 

Florida  East  Coast  Bailway. 

Florida  Bailway. 

Fonda,  Johnstown  and  Gloversville 
Bailroad. 

Fort  Smith  and  Western  Bailroad  Com- 
pany. 

Fort  Worth  and  Denver  City  Bailway 
Company. 

Fort  Worth  and  Bio  Grande  Bailway 
Company. 

Georgia  and  Florida  Bailway. 

Georgia  Coast  and  Piedmont  Bailroad. 

Georgia,  Florida  and  Alabama  Bailway. 

Georgia  Northern  Bailway  of  Georgia. 

Georgia  Bailroad. 

Georgia  Southern  and  Florida  Bailway. 

Gila  Valley,  Globe  and  Northern  Bail- 
way  Company. 

Grand  Canyon  Bailway  Company. 

Grand  Bapids  and  Indiana  Bailway. 

Grand  Trunk  Eailway  of  Canada. 

Grand  Trunk  Western  Bailway. 

Great  Northern  Bailway. 

Green  Bay  and  Western  Bailroad. 

Gulf  and  Interstate  Bailway  Company 
of  Texas. 

Gulf  and  Ship  Island  Bailroad. 

Gulf,  Colorado  and  Santa  Fe  Bailway 
Company. 

Gulf  Line  Bailway. 

Hocking  Valley  Bailway. 

Houston    and    Texas    Central   Bailroad 

Company. 
Houston  East  and  West  Texas  Bailway 

Company. 

Idaho  and  Washington  Northern  Bail- 
road  Company. 

Idaho  Northern  Bailway  Company. 

niinois  Central  Bailroad. 

Illinois,  Iowa  and  Minnesota  Bailway. 

Illinois  Southern  Bailway. 

International  and  Great  Northern  Bail- 
road  Company. 

Iowa  Central  Bailway. 


Kansas    City,    Clinton    and    Spring 
Bailway  Company. 

Kansas  City,  Mexico  and  Orient  Bail- 
way  Company. 


TITLES  OP  BAIL  WATS 


393 


Kansas  City  Southern  Eailway  Com- 
pany. 

Kansas  City  Southwestern  Eailway 
Company. 

Lake  Erie  and  Western  Eailroad. 

Lake  Shore  and  Michigan  Southern 
Eailway. 

Lancaster  and  Chester  Eailway. 

Las  Vegas  and  Tonopah  Eailroad  Com- 
pany. 

Leavenworth  and  Topeka  Eailway  Com- 
pany. 

Lehigh  and  Hudson  Eiver  Eailway. 

Lehigh  and  New  England  Eailroad. 

Lehigh  Valley  Eailroad. 

Lexington  and  Eastern  Eailway. 

Long  Island  Eailroad. 

Louisiana  and  Arkansas  Eailway  Com- 
pany. 

Louisiana  and  Northwest  Eailroad  Com- 
pany. 

Louisiana  Eailway  and  Navigation  Com- 
pany. 

Louisiana  Western  Eailroad  Company. 

Louisville  and  Atlantic  Eailroad. 

Louisville  and  Nashville  Eailroad. 

Louisville,  Henderson  and  St.  Louis 
Eailway. 

Macon  and  Birmingham  Eailway. 

Maeon,  Dublin  and  Savannah  Eailroad. 

Maine  Central  Eailroad. 

Manistee  and  Grand  Eapids  Eailroad. 

Manistee  and  Luther  Eailroad. 

Manistee  and  Northeastern  Eailroad. 

Manistique  Eailway. 

Maryland  and  Pennsylvania  Eailroad. 

Michigan  Central  Eailroad. 

Midland  Valley  Eailroad  Company. 

Minneapolis  and  St.  Louis  Eailroad. 

Minneapolis,  St.  Paul  and  Sault  Ste. 
Marie  Eailway. 

Minnesota  and  International  Eailway. 

Mississippi  Central  Eailroad. 

Mississippi  Eiver  and  Bonne  Terre  Eail- 
way. 

Missouri  and  North  Arkansas  Eailroad 
Company. 

Missouri,  Kansas  and  Texas  Eailway 
Company. 

Missouri,  Oklahoma  and  Gulf  Eailway 
Company. 


Missouri  Pacific  Eailway  Company. 

Missouri  Southern  Eailroad  Company. 

Mobile  and  Ohio  Eailroad. 

Mobile,  Jackson  and  Kansas  City  Eail- 
road. 

Montana  Central  Eailway. 

Montana  Eailroad. 

Morgan's  Louisiana  and  Texas  Eailroad 
and  Steamship  Company. 

Munising  Eailway. 

Nashville,  Chattanooga  and  St.  Louis 
Eailway. 

Nevada  and  California  Eailway  Com- 
pany. 

Nevada-California-Oregon  Eailway. 

Nevada  Central  Eailroad  Company 
(The). 

Nevada  Northern  Eailway  Company. 

New  Orleans  Great  Northern  Eailroad. 

Newton  and  Northwestern  Eailroad. 

New  York  and  Pennsylvania  Eailway. 

New  York  Central  and  Hudson  Eiver 
Eailroad. 

New  York,  Chicago  and  St.  Louis  Eail- 
road. 

New  York,  New  Haven  and  Hartford 
Eailroad. 

New  York,  Ontario  and  Western  Eail- 
way. 

New  York,  Philadelphia  and  Norfolk 
Eailroad. 

New  York,  Susquehanna  and  Western 
Eailroad. 

Norfolk  and  Southern  Eailway. 

Norfolk  and  Western  Eailway. 

Northern  Alabama  Eailway. 

Northern  Central  Eailway. 

Northern  Pacific  Eailway. 

iNorthwestern  Pacific  Eailroad  Company. 

Ohio  Eiver  and  Western  Eailway. 
Oklahoma  Central  Eailway  Company. 
Oregon  Eailroad  and  Navigation  Com- 
pany. 
Oregon  Short  Line  Eailroad  Company. 

Pacific    and    Idaho    Northern    Eailway 

Company. 

Pacific  Coast  Eailway  Company. 
Pennsylvania  Company. 
Pennsylvania  Eailroad. 
Peoria  and  Eastern  Eailway. 


394 


TITLES  OP  RAILWAYS 


Pere  Marquette  Railroad. 

Philadelphia  and  Beading  Railway. 

Philadelphia,  Baltimore  and  Washing- 
ton Railroad. 

Pittsburgh  and  Lake  Erie  Railroad. 

Pittsburgh,  Cincinnati,  Chicago  and  St. 
Louis  Railway. 

Pittsburg,  Shawmut  and  Northern  Bail- 
road. 

Pontiac,  Oxford  and  Northern  Railroad. 

Quincy,  Omaha  and  Kansas  City  Bail- 
road. 

Reading  and  Columbia  Railroad. 
Richmond,  Fredericksburg  and  Potomac 

Railroad. 

Rio  Grande  Southern  Railroad  Company. 
Rutland  Railroad. 

St.  Joseph  and  Grand  Island  Railway. 

St.  Johnsbury  and  Lake  Champlain 
Railroad. 

St.  Louis  and  Hannibal  Railway. 

St.  Louis  and  San  Francisco  Railroad 
Company. 

St.  Louis,  Brownsville  and  Mexico  Rail- 
way Company. 

St.  Louis,  Iron  Mountain  and  Southern 
Railway  Company. 

St.  Louis,  San  Francisco  and  Texas 
Railway  Company. 

St.  Louis  Southwestern  Railway  Com- 
pany. 

St.  Louis  Southwestern  Railway  Com- 
pany of  Texas. 

San  Antonio  and  Aransas  Pass  Railway 
Company. 

Sandy  River  and  Rangeley  Lakes  Rail- 
road. 

San  Pedro,  Los  Angeles  and  Salt  Lake 
Railroad  Company. 

Santa  Fe  Central  Railway  Company. 

Santa  Fe,  Prescott  and  Phoenix  Rail- 
way Company. 

Seaboard  Air  Line  Railway. 

Southern    Indiana    Railway    Company. 

Southern  Kansas  Railway  Company  of 
Texas. 


Southern  Pacific  Company. 

Southern  Railway. 

South  Georgia  Railway. 

Spokane,  Portland  and  Seattle  Railway 

Company. 
Susquehanna  and  New  York  Railroad. 

Texas  and  Gulf  Railway  Company. 

Texas  and  New  Orleans  Railroad  Com- 
pany. 

Texas  and  Pacific  Railway  Company. 

Texas  Central  Railroad  Company. 

Texas  Midland  Railroad. 

Texas  Mexican  Railway  Company. 

Texas  Southern  Railway  Company. 

Tidewater  and  Western  Railroad. 

Toledo  and  Ohio  Central  Railway. 

Toledo  and  Western  Railroad. 

Toledo,  Peoria  and  Western  Railway. 

Toledo,  Saginaw  and  Muskegon  Rail- 
way. 

Toledo,  St.  Louis  and  Western  Rail- 
road. 

Tombigbee  Valley  Railroad. 

Ulster  and  Delaware  Railroad. 
Union  Pacific  Railroad. 

Vandalia  Railroad. 

Vicksburg,  Shreveport  and  Pacific  Rail- 
way Company. 

Virginia  and  Southwestern  Railway. 
Virginian  Railway. 

Wabash  Railroad. 
Western  Maryland  Railroad. 
Western   Pacific  Railway  Company. 
Western  Railway  of  Alabama. 
West  Jersey  and  Sea  Shore  Railroad. 
Wheeling  and  Lake  Erie  Railroad. 
Wichita  Valley  Railway  Company. 
Wisconsin  and  Michigan  Railway. 
Wisconsin  Central  Railway. 
Wrightsville  and  Tennille  Railroad. 
Wyoming  and  Northwestern  Railway. 

Yazoo  and  Mississippi  Valley  Railroad. 


BIBLIOGRAPHY 


LEGAL   BIBLIOGRAPHY 

The  following  are  the  more  important  legal  works  relating  to  rail- 
roads generally  and  the  constitutional  provisions  of  the  act  to  regu- 
late commerce: 

BALDWIN,  SIMON  E. :    American  Railroad  Law. 

BEALE,  AND  WYMAN:  The  Law  of  Eailroad  Eate  Regulation,  with 
Special  Reference  to  American  Legislation. 

CALVERT,  THOMAS  HENRY:  Regulation  of  Commerce  under  the  Fed- 
eral Constitution. 

DEWHURST:    Annotated  Rules  of  the  Federal  Courts. 

ELLIOTT  :    Railroads. 

HAINES,  HENRY  S. :    Restrictive  Railway  Legislation. 

HAMLIN  :    Interstate  Commerce  Acts,  Indexed  and  Digested. 

HARTSHORNE,  F.  C. :    The  Railroads  and  the  Commerce  Clause. 

HENDRICK,  FRANK:  The  Power  to  Regulate  Corporations  and  Com- 
merce; A  Discussion  of  the  Existence,  Basis,  Nature,  and  Scope 
of  the  Common  Law  of  the  United  States. 

HUTCHINSON  :    Carriers. 

IVINS  AND  MASON  :    The  Control  of  Public  Utilities. 

JONES,  PAUL:    The  Commercial  Power  of  Congress. 

JUDSON,  FREDERICK  NEWTON:    Federal  Rate  Bill,  Immunity  Act,  and 
Negligence  Law  of  1906. 
—    Interstate  Commerce  and  Its  Federal  Regulation. 

MACMURCHY  AND  DENisoN :    The  Canadian  Railway  Act,  Annotated. 
(This  is  valuable  for  the  purpose  of  comparison  of  legislation  in  the 
two  countries,  as  it  contains  the  leading  decisions  of  the  Interstate  Com- 
merce Commission  arranged  under  the  respective  heads  of  the  Canadian 
law.) 

McKiNNEY,  AND  KJEMPER,  jr.:  The  Federal  Statutes  Annotated. 
Vol.  3. 

MOORE  :     Carriers. 

NELSON:  The  Law  Relating  to  the  Interstate  Commerce  Commis- 
sion. 

NOYES,  WALTER  CHADWICK:    American  Railroad  Rates. 

A  Treatise  on  the  Law  of  Intercorporate  Relations. 

PIERCE:    Digest  of  Decisions  Under  Act  to  Regulate  Commerce. 

395 


396  BIBLIOGRAPHY 

PRENTICE,  EZRA  PARMALEE:  The  Federal  Power  over  Carriers  and 
Corporations. 

RANDOLPH,  CARMAN  FITZ:  An  Examination  of  Federal  Powers  in 
Respect  of  Railways. 

SMALLEY,  HARRISON  STANDISH:  Railroad  Rate  Control  in  Its  Legal 
Aspects ;  A  Study  of  the  Effect  of  Judicial  Decisions  upon  Pub- 
lic Regulation  of  Railroad  Rates. 

SNYDER,  WILLIAM  LAMARTINE:  The  Interstate  Commerce  Act  and 
Federal  Anti-Trust  Laws. 

TECHNICAL    BIBLIOGRAPHY 

The  following  books  treat  of  the  railway  problem  in  this  and  for- 
eign countries: 

ACWORTH,  WILLIAM  MITCHELL:    The  Railways  of  England.    5th  ed. 
ADAMS,  CHARLES  FRANCIS:    Railroads:  Their  Origin  and  Problems. 

ALEXANDER,  E.  PORTER:  Railway  Practice:  Its  Principles  and  Sug- 
gested Reforms  Reviewed. 

CLARK,  FREDERICK  C. :  State  Railroad  Commissions,  and  How  They 
May  be  Made  Effective. 

COMPENDIUM  OF  TRANSPORTATION  THEORIES  :  A  Compilation  of  essays 
upon  transportation  subjects  by  eminent  experts.  Publication  of 
series  under  direction  of  C.  C.  McCain. 

COOK,  WILLIAM  WILSON:  The  Corporation  Problem.  The  Public 
Phases  of  Corporations,  Their  Uses,  Abuses,  etc. 

DIXON,  FRANK  H. :  State  Railroad  Control,  With  a  History  of  Its 
Development  in  Iowa. 

Dos  PASSOS,  JOHN  R. :  The  Interstate  Commerce  Act :  An  Analysis 
of  Its  Provisions. 

HADLEY,  ARTHUR  T. :  Railroad  Transportation:  Its  History  and  Its 
Laws. 

HENDRICK,  FRANK  :    Railway  Control  by  Commissions. 

HOFF  AND  SCHWABACH:  North  American  Railroads:  Their  Admin- 
istration and  Economic  Policy. 

HUDSON,  JAMES  F. :    The  Railways  and  the  Republic. 

JEANS,  J.  S. :     Railway  Problems :  An  Inquiry  Into  the  Economic 

Conditions  of  Railway  Working  in  Different  Countries. 
JOHNSON,  EMORY  R. :    American  Railway  Transportation. 

KIRKMAN,  MARSHALL  M. :  Economic  Theory  of  Rates.  Private  ver- 
sus Government  Control  of  Railroads. 


BIBLIOGRAPHY  397 

LANGSTROTH  AND  STILZ:  Railway  Co-operation:  An  Investigation 
of  Railway  Traffic  Associations  and  a  Discussion  of  the  Degree 
and  Form  of  Co-operation  That  Should  be  Granted  Competing 
Railways  in  the  United  States.  With  an  introduction  by  Martin 
A.  Knapp. 

LARRABEE,  WILLIAM:  The  Railroad  Question:  A  Historical  and 
Practical  Treatise  on  Railroads,  and  Remedies  for  Their  Abuses. 

LEWIS,  GEORGE  H. :  National  Consolidation  of  the  Railways  of  the 
United  States. 

MCPHERSON,  LOGAN  G. :    The  Working  of  the  Railroads. 

MEYER,  BALTHASER  HENRY:  Railway  Legislation  in  the  United 
States. 

MEYER,  HUGO  RICHARD:  Government  Regulation  of  Railway  Rates: 
A  Study  of  the  Experience  of  the  United  States,  Germany, 
France  Austria-Hungary,  Russia  and  Australia. 

MORGAN,  APPLE-TON:  The  People  and  the  Railways;  A  Popular  Dis- 
cussion of  the  Railway  Problem  of  the  United  States,  by  way  of 
answer  to  ' '  The  Railways  and  the  Republic, ' '  by  James  F.  Hud- 
son, and  with  an  examination  of  the  interstate  commerce  law. 

MUNDY,  FLOYD  WOODRUFF  :  The  Earning  Power  of  Railroads,  With 
Tables  Showing  Facts  as  to  Earnings,  Capitalization,  Mileage, 
etc.,  of  112  Railroads  in  the  United  States  and  Canada. 

NATIONAL  ASSOCIATION  OF  RAILWAY  COMMISSIONERS:      Proceedings. 

NEWCOMB,  HARRY  TURNER  :  Railway  Economics. 

NIMMO,  JOSEPH,  jr. :  The  American  Railroad  System  and  the  Trust 
Question.  A  Discussion  of  the  Political,  Commercial,  and  Eco- 
nomic Aspects  of  the  Subject. 

PARSONS,  FRANK:  The  Heart  of  the  Railroad  Problem:  the  History 
of  Railway  Discrimination  in  the  United  States,  the  Chief  Ef- 
forts at  Control  and  the  Remedies  Proposed,  with  Hints  from 
Other  Countries. 

PRATT,  EDWIN  A. :  Railways  and  Their  Rates,  with  an  Appendix  on 
the  British  Canal  Problem. 

RAILWAYS  IN  THE  UNITED  STATES  IN  1902:  (Pts.  II,  IV,  V,)  Wash- 
ington :  Government  Printing  Office,  1903.  Three  vols. 

Pt.  II.  A  forty-year  review  of  changes  in  freight  tariffs.     Prepared  by 
the  auditor  of  the  Commission. 

Pt.  IV.  State  regulation  of  railways.     Prepared  by  the  statistician  to 
the  Commission. 

Pt.   V.  State  taxation   of   railways   and    other  transportation   agencies. 
Prepared  by  the  statistician  to  the  Commission. 

RINGWALT,  JOHN  LUTHER:    Development  of  Transportation  Systems 

in  the  United  States. 
RIPLEY,  WILLIAM  Z.,  ed.:    Railway  Problems. 


398  BIBLIOGRAPHY 

Ross,  HUGH  MUNEO:     British  Railways :     Their  Organization  and 

Management. 

SMALLEY,  EUGENE  V. :    History  of  the  Northern  Pacific  Eailroad. 
TODD,  MARION:     Railways  of  Europe  and  America;  or,  Government 

Ownership.  With  notes  from  official  sources. 
UNITED  STATES  :  Industrial  Commission.  Reports. 
UNITED  STATES:  Regulation  of  Railway  Rates.  Hearings  before  the 

Committee  on  Interstate  Commerce,  Senate  of  the  United  States 

*     *     *     December   16,   1904    (May  23,  1905)     *     *     *     with 

consolidated  index  of  volumes  I-V. 
VAN  Oss,  S.  F. :    American  Railroads  as  Investments.    A  Handbook 

for  Investors  in  American  Railroad  Securities. 
WEYL,  WALTER  E. :    The  Passenger  Traffic  of  Railways. 
WHITE,  HENRY  KIRKES  :    History  of  the  Union  Pacific  Railway. 


TABLE  OF  CASES 


Page 

A.  &  N.  W.  E.  Co.,  Dallas  Freight  Bu.  v.  (9  I.  C.  C.,  68), 81 

A.  A.  E.  Co.,  Forest  City  Freight  Bu.  v.  (13  I.  C.  C.,  109), 113 

A.  A.  E.  Co.,  Forest  City  Freight  Bu.  v.  (13  I.  C.  C.,  118), 114 

A.  A.  E.  Co.,  Natl.  Petroleum  Assn.  v.  (14  I.  C.  C.,  272), 102, 105, 114 

A.  A.  E.  Co.,  U.  S.  v.  (D.  C.,  Ohio), 225 

A  C.  L.  E.  Co.,  Brabham  v.  (11  I.  C.  C.,  464), 44, 45 

A.  C.  L.  E.  Co.,  Macon  Gro.  Co.  v.  (163  Fed.,  738),  208 

A.  C.  L.  E.  Co.  v.  Fain  &  Stamps  (13  I.  C.  C.,  529), 133 

A.  M.  E.  Co.,  B.  of  T.  v.  (6  L  C.  C.,  1), 35,  80,  82 

A.  M.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ala.), 236 

A.  M.  E.  Co.,  I.  C.  C.  v.  (168  U.  S.,  144),  66, 173 

A.  T.  &  S.  F.  E.  Co.,  Bovaird  Supply  Co.  v.  (13  I.  C.  C.,  56), 150 

A.  T.  &  S.  F.  E.  Co.,  Bus.  Men's  League  (9  I.  C.  C.,  318), 78 

A.  T.  &  S.  F.  E.  Co.,  D.  &  N.  O.  E.  Co.  v.  (15  Fed.,  650), 195 

A.  T.  &  S.  F.  E.  Co.  v.  D.  &  E.  G.  E.  Co.  (110  U.  S.,  683), 171 

A.  T.  &  S.  F.  E.  Co.,  Duncan  v.  (6  I.  C.  C.,  85), 43,  81 

A.  T.  &  S.  F.  E.  Co.,  Gentry  v.  (13  I.  C.  C.,  171), 27, 168 

A.  T.  &  S.  F.  E.  Co.,  Gustin  v.  (8  I.  C.  C.,  277), 78 

A.  T.  &  S.  F.  E.  Co.,  I.  C.  C.  v.  (50  Fed.,  295), 171,  262 

A.  T.  &  S.  F.  E.  Co.,  I.  C.  C.  v.  (149  U.  S.,  264), 262,  265 

A.  T.  &  S.  F.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Gal.), 235 

A.  T.  &  S.  F.  E.  Co.,  Johnston-Larimer  D.  G.  Co.  v.  (6  I.  C.  C.,  568),  ...  80 

A.  T.  &  S.  F.  E.  Co.,  Johnston-Larimer  D.  G.  Co.  v.  (12  I.  C.  C.,  48),  ...  139 

A.  T.  &  S.  F.  E.  Co.,  Kindel  v.  (8  I.  C.  C.,  608), 78,  81 

A.  T.  &  S.  F.  E.  Co.,  Kindel  v.  (9  I.  C.  C.,  606), 81 

A.  T.  &  S.  F.  E.  Co.,  Lehmann-Higginson  G.  Co.  v.  (10  L  C.  C.,  460),  . .       79,  81 

A.  T.  &  S.  F.  E.  Co.,  Matthews  v.  (5  I.  C.  C.,  299), 72,  77,  80 

A.  T.  &  S.  F.  E.  Co.,  Mayor,  etc.,  of  W.  v.  (9  I.  C.  C.,  534),  .  .78, 81, 110, 120, 174 

A.  T.  &  S.  F.  E.  Co.,  Mayor,  etc.,  of  W.  v.  (9  I.  C.  C.,  558), 73 

A.  T.  &  S.  F.  E.  Co.,  Mo.  &  Kans  S.  Assn.  v.  (13  I.  C.  C.,  411),  .  .95, 103, 110, 132 

A.  T.  &  S.  F.  E.  Co.,  re  (7  I.  C.  C.,  593), 80 

A.  T.  &  S.  F.  E.  Co.,  San  Bernardino  B.  of  T.  v.  (4  I.  C.  C.,  104), 71, 

77,  80,  82,  84, 152 

A.  T.  &  S.  F.  E.  Co.,  Pitts  v.  (10  I.  C.  C.,  691), 73, 120, 134 

A.  T.  &  S.  F.  E.  Co.,  Eice  v.  (4  I.  C.  C.,  228), 71,  77,  80,  84, 167 

A.  T.  &  S.  F.  E.  Co.,  E.  Com.  v.  (8  I.  C.  C.,  304), 81, 154 

A.  T.  &  S.  F.  E.  Co.,  S.  G.  &  L.  Co.  v.  (14  I.  C.  C.,  364), 27 

A.  T.  &  S.  F.  E.  Co.,  Shippers'  Union  v.  (9  I.  C.  C.,  250), 73,  78 

A.  T.  &  S.  ±\  E.  Co.,  U.  S.  v.  (150  Fed.,  442), 54 

A.  T.  &  S.  F.  E.  Co.,  TL  S.  v.  (C.  C.,  Mo.), 243 

A.  T.  &  S.  F.  E.  Co.,  U.  S.  v.  (C.  C.,  A.  8th  Circuit,  Aug.  22,  1908),  ....  55 

A.  T.  &  S.  F.  E.  Co.,  U.  S.  v.  (D.  C.,  Cal.  June  6,  1908), 55 

A.  T.  &  S.  F.  E.  Co.,  U.  S.  v.  (D.  C.,  Ariz.  July  17,  1908), 55 

A.  T.  &  S.  F,  E.  Co.,  TJ.  S.  v.  (D.  C.,  Cal), 226 

399 


400  TABLE  OP  CASES 

Page 

A.  T.  &  S.  F.  B.  Co.,  U.  S.  v.  (D.  C.,  N.  Hex.), 220 

A.  T.  &  S.  F.  B.  Co.,  U.  S.  v.  (D.  C.,  I1L), 215 

A.  T.  &  S.  F.  B.  Co.,  Wholesale  F.  &  P.  Assn.  (14  I.  C.  C.,  410), 69 

A.  W.  &  B.  B.  Co.,  re  (1  I.  C.  C.,  345), 35 

Abilene  Cotton  Oil  Co.  v.  T.  &  P.  B.  Co.  (204  U.  S.,  426), 20,  21,  208 

Acme  C.  P.  Co.  v.  L.  S.  &  M.  S.  E.  Co.  (I.  C.  C.  Docket,  1431), 114 

Acme  C.  P.  Co.  v.  L.  S.  &  M.  S.  B.  Co.  (I.  C.  C.  Docket,  1434), 333 

Acts  &  Doings  of  G.  T.  B.  Co.,  re  (3  I.  C.  C.,  89), 25, 34, 73, 75,  82,  83 

Agel  &  Levin,  U.  S.  v.  (D.  C.,  Vermont),  217 

Alabama,  Smith  v.  (124  U.  S.,  465),  194 

Albany  Ins.  Co.  v.  Lumberg  (121  U.  S.,  451), 246 

Albro  v.  Manhattan  etc.,  Ins.  Co.  (119  Fed.,  629), 257 

Alexander  v.  U.  S.  (201  U.  S.,  117),  163 

Alford  v.  C.  B.  I.  &  P.  E.  Co.  (3  I.  C.  C.,  519), 75,  77 

Allen  v.  Israel   (Balto.  Co.  Ct.),  187 

Allen  v.  L.  N.  A.  &  C.  B.  Co.  (1  I.  C.  C.,  199), 79, 117 

Alleged  Excessive  Freight  Bates  and  Charges  on  Food  Products,  re  (4  I. 

C.  C.,  48), 71,  77,  80,  83 

Alleged  Excessive  Freight  Bates  and  Charges  on  Food  Products,  re  (41. 

C.   C.,   116),    25,  47,  50,  84, 167 

Alleged  Unlawful  Charges,  etc.,  re  (8  I.  C.  C.,  585), 42, 151 

Alleged  Unlawful  Charges  for  Transportation  of  Coal  by  the  L.  &  N.  B. 

Co.,  re  (5  I.  C.  C.,  466),   72,  75 

Alleged  Unlawful  Bates,  re  (8  L  C.  C.,  121), 24,  81 

Alleged  Unlawful  Bates  and  Practices,  re  (7  I.  C.  C.,  33), 76,  78,  82 

Alleged  Unlawful  Bates  and  Practices,  re  (10  I.  C.  C.,  473), 24 

Alleged  Unlawful  Transportation  Charges,  re  (6  I.  C.  C.,  624), 23 

Alleged  Violations  Act  to  Begulate  Commerce,  re  (81.  C.  C.,  290), 78,  81 

Alleged  Violation  of  Section  4,  re  (7  I.  C.  C.,  61), 80 

Allowances  to  Elevators,  re  (12  I.  C.  C.,  86), 24 

Allowances  to  Elevators,  re  (13  L  C.  C.,  498),  171, 184 

Allowances  to  Elevators,  re  (14  I.  C.  C.,  315),  27 

Am.  Asphalt  Assn.  v.  Uintah  E.  Co.  (13  L  C.  C.,  196), 169, 175, 176 

American  Coal  Co.  v.  G.  C.  Co.  and  C.  &  P.  B.  Co.  (46  Md.,  15), 195 

Am.  Grass  Twine  Co.  v.  C.  St.  P.  M.  &  O.  B.  Co.  (12  I.  C.  C.,  141), 139 

Am.  Live  Stock  Assn.  v.  T.  &  P.  E.  Co.  (12  I.  C.  C.,  32), 168 

American  Sugar  Befining  Co.,  U.  S.  v.  (D.  C.,  N.  Y.), 220,  222,  223 

Am.  Warehouseman's  Assn.  v.  L  C.  B.  Co.  (7  I.  C.  C.,  556), 72,  76, 113 

Ames-Brooks  Co.  of  Duluth,  U.  S.  v.  (D.  C.,  Minn),  225 

Ames,  Smyth  v.   (169  U.  S.,  466),  175, 382 

Amy,  Bath  Co.  v.  (13  Wall.,  244),  203 

Andrews  Soap  Co.  v.  P.  C.  &  St.  L.  E.  Co.  (4  I.  C.  C.,  41), 71,  75, 77 

Anderson  v.  Morton   (23  App.  D.  C.,  445),   187 

Anthony  Salt  Co.  v.  M.  P.  B.  Co.  (5  I.  C.  C.,  299), 72,  80 

Anthony  Salt  Co.  v.  St.  L.  &  S.  F.  B.  Co.  (5  L  C.  C.,  299), 72, 77,  80 

Application  for  Extension  of  Time  for  Compliance  with  Safety  Appliance 

Act,  C.  &  A.  B.  Co.,  et  al.  (8  I.  C.  C.,  643), 55 

Application  of  F.  W.  Clark,  re  (3  I.  C.  C.,  649), 79 

Armour  &  Co.,  U.  S.  v.  (142  Fed.,  808), 161, 163 

Armour  P.  Co.,  U.  S.  v.  (D.  C.,  Mo.),  219 

Armour  P.  Co.  v.  U.  S.  (209  U.  S.,  56), 34,  38,  231 

Arms,  Kimberly  v.   (129  U.  S.,  512),   29 


TABLE  OF  CASES  401 

Page 

Arredondo,  U.  S.  v.  (6  Pet.,  709),  15 

Artz  v.  S.  A.  L.  E.  Co.  (11  I.  C.  C.,  458), 44 

Assessors  v.  Osbornes   (9  Wall.,  567) ,    203 

Associated  W.  Gro.  v.  M.  P.  E.  Co.  (1  I.  C.  C.,  156), 84 

Ault,  U.  S.  v.  (D.  C.,  Tex.),  215 

B.  &  A.  E.  Co.  v.  B.  &  L.  E.  Co.  (1  I.  C.  C.,  158), 79, 113, 118 

B.  &  L.  E.  Co.,  B.  &  A.  E.  Co.  v.  (1  I.  C.  C,  158), 79, 113, 118 

B.  &  O.  E.  Co.,  P.  C.  &  St.  L.  E.  Co.  v.  (3  I.  C.  C.,  465), 75, 82,  84 

B.  C.  E.  &  N.  E.  Co.,  C.  B.  &  Q.  E.  Co.  v.  (34  Fed.,  481), 22, 195 

B.  &  A.  E.  Co.,  Kemble  v.  (8  I.  C.  C.,  110), 34, 39,  80,  82 

B.  &  L.  E.  Co.,  Vt.  State  Grange  v.  (1  I.  C.  C.,  158), 79 

B.  &  M.  E.  Co.,  Macloon  v.  (9  L  C.  C.,  642),  73 

B.  &  M.  E.  Co.,  Lincoln  B.  of  T.  v.  (2  I.  C.  C.,  147), 71, 76 

B.  &  M.  E.    E.  Co.,  Griffee  v.  (2  I.  C.  C.,  301),  74,  76,  84 

B.  &  M.  E.  E.  Co.,  Gustin  v.  (8  L  C.  C.,  481), 81 

B.  &  M.  Co.,  IT.  S.  ex  rel.  v.  (C.  C.,  Mass.),  205 

B.  &  O.  E.  Co.,  Castle  v.  (8  I.  C.  C.,  333), 151 

B.  &  O.  E.  Co.,  Dewey  Bros.  v.  (11  I.  C.  C.,  474), 166 

B.  &  O.  E.  Co.,  England  v.  (13  L  C.  C.,  614), 30,  58, 157 

B.  &  O.  E.  Co.,  Glade  Coal  Co.  v.  (10  I.  C.  C.,  226), 73, 78, 134 

B.  &  O.  E.  Co.,  Hecker- Jones- Jewell  M.  Co.  v.  (14  I.  C.  C.,  356), 206 

B.  &  O.  E.  Co.,  I.  C.  C.  v.  (43  Fed.,  37), 66 

B.  &  O.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ohio), 235 

B.  &  O.  E.  Co.,  I.  C.  C.  v.  (145  TI.  S.,  263), 66, 172, 173, 194 

B.  &  O.  E.  Co.  v.  I.  C.  C.  (C.  C.,  Md.),  206 

B.  &  O.  E.  Co.  v.  I.  C.  C.  (C.  C.,  Md.,  July,  1908), 362 

B.  &  O.  E.  Co.  v.  I.  C.  C.  (D.  C.,  Md.), 204 

B.  &  O.  E.  Co.,  17.  S.  v.  (D.  C.,  W.  Va.),  228 

B.  &  O.  E.  Co.,  Montell  v.  (7  L  C.  C.,  412),  78 

B.  &  O.  E.  Co.,  N.  Y.  Produce  Ex.  v.  (7  I.  C.  C.,  612), 17, 78 

B.  &  O.  E.  Co.,  E.  &  E.  Coal  Co.  v.  (14  I.  C.  C.,  46), 58,  69,  83, 206 

B.  &  O.  E.  Co.,  Bed  Eock  Fuel  Co.  v.  (11  I.  C.  C.,  438), 79 

B.  &  O.  E.  Co.,  Eiddle,  Dean  &  Co.  v.  (1  I.  C.  C.,  608), 74, 107 

B.  &  O.  E.  Co.,  Sprigg  v.  (8  I.  C.  C.,  443), 61,  62,  84 

B.  &  O.  E.  Co.,  U.  S.  ex  rel.  Pitcairn  v.  (154  Fed.,  108), 58 

B.  &  O.  S.  W.  E.  Co.,  Globe-Wernicke  Co.  v.  (11  I.  C.  C.,  156), 166 

B.  H.  St.  J.  E.  &  L.  Co.,  Benton  T.  Co.  v.  (13  I.  C.  C.,  542), 127, 168 

B.  P.  &  E.  Co.,  Schlemmer  v.  (205  U.  S.,  1), 54 

B.  S.  &  C.  E.  Co.,  Blakenship  v.  (I.  C.  C.  Docket,  1777), 331 

Babcock,  U.  S.  v.  (3  Dillon  (C.  C.),  566), 148 

Baird,  I.  C.  C.  v.   (C.  C.,  N.  Y.), 261 

Baird,  I.  C.  C.  v.  (794  TJ.  S.,  25),  240 

Baker,  N.  Mex.,  ex  rel.  v.  (196  U.  S.,  432), 196 

Ball,  The  Daniel  (10  Wall.,  557),  37, 41 

Baer  Bros.  M.  Co.  v.  M.  P.  E.  Co.  (13  L  C.  C.,  329), 35, 133 

Banner  M.  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (14  I.  C.  C.,  398), 154,  207 

Barber  v.  Harris   (6  Mackey,  586),   187 

Barbour,  Barton  v.  (104  TJ.  S.,  128),  254 

Barden  v.  S.  &  L.  V.  E.  Co.  (12  I.  C.  C.,  193), 168 

Bartley  v.  State  (55  Nebr.,  294),  165 

Barton  v.  Barbour  (104  U.  S.,  128),  254 


402  TABLE  OF  CASES 

Page 

Barton  v.  C.  B.  L  &  P.  B.  Co.  (5  I.  C.  C.,  299), 72, 77,  80 

Bates  v.  D.  C.  (1  MacA.,  423), 187 

Bates  v.  P.  E.  Co.  (3  I.  C.  C.,  435), 75, 77, 121 

Bates  v.  P.  E.  Co.   (4  I.  C.  C.,  281),   83,84 

Bath  Co.  v.  Amy    (13   Wall.,  244),    203 

Batty,  McNulty  v.    (10   How.,  72),    18 

Beaver  &  Co.  v.  P.  C.  &  St.  L.  E.  Co.  (4  I.  C.  C.,  733), 75 

Becker,  C.  M.  &  St.  P.  E.  Co.  v.  (32  Fed.,  849), 36 

Behlmer,  L  &  N.  E.  Co.  v.  (175  U.  S.,  648),  171, 185,  257 

Behlmer  v.  M.  &  C.  B.  Co.  (6  I.  C.  C.,  257), 80, 186 

Behr  v.  Conn.  Mut.  L.  Ins.  Co.   (2  Flipp.,  692), 153 

Belding  v.  Hebard  (103  Fed.,  532),  257 

Belknap,  U.  S.  v.  (D.  C.,  Tex.),  215 

Belt  E.  Co.,  U.  8.  v.  (161  Fed.,  — ),  55 

Bennett,  U.  S.  v.  (D.  C.,  Ohio),  226 

Benton  T.  Co.  v.  B.  H.  St.  J.  E.  &  L.  Co.  (13  I.  C.  C.,  542),     127, 168 

Bessette  v.  Conkey  Co.  (194  U.  S.,  324),  240,  241 

Bills  of  Lading,  re  (14  I.  C.  C.,  346), 17,  24, 169 

Bingham,  Smith  v.  (3  111.  App.,  65),   129 

Birmingham  P.  Co.  v.  P.  &  T.  E.  Co.  (12  I.  C.  C.,  29), 168 

Bishop  v.  Duval,  rec.  (3  I.  C.  C.,  128),   42,  45,  83,  86, 183 

Blackwell  M.  &  E.  Co.  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.,  24), 30, 139 

Blagden  v.  Broadrup  (2  H.  &  H.,  278), 187 

Blakenship  v.  B.  S.  &  C.  E.  Co.  (I.  C.  C.  Docket,  1777), 331 

Board  of  Liquidation  v.  U.  S.  (108  Fed.,  689), 203 

B.  of  T.  v.  A.  M.  E.  Co.  (6  I.  C.  C.,  1), 35, 114 

B.  of  T.  v.  C.  A  A.  E.  Co.  (4  I.  C.  C.,  158), 75, 77 

B.  of  T.  (sub  nom  Harwell)  v.  C.  &  W.  E.  Co.  (1  I.  C.  C.,  236), 121, 151 

B.  of  T.  v.  C.  of  Ga.  E.  Co.  (8  I.  C.  C.,  142), 78 

B.  of  T.  v.  C.  M.  &  St.  P.  E.  Co.  (1  I.  C.  C.,  215), 76 

B.  of  T.  v.  E.  T.  V.  &  G.  E.  Co.  (51.  C.  C.,  546), 72,  78, 80 

B.  of  T.  v.  G.  T.  E.  Co.  (2  I.  C.  C.,  315), 71,  76 

B.  of  T.  v.  N.  C.  &  St.  L.  E.  Co.  (8  I.  C.  C.,  503), 24,  78,  81 

B.  of  T.  v.  O.  D.  S.  S.  Co.  (6  I.  C.  C.,  633), 136 

Boisdore's  Heirs,  U.  S.  v.  (8  How.,  121), 18 

Bond,  I.  C.  C.  v.  (194  U.  S.,  25),  163 

Bond  v.  Hardware  Co.  (15  App.  D.  C.,  72), 187 

Booth  &  Co.,  U.  S.  v.  (D.  C.,  HL),  216 

Bosley,  U.  S.  v.  (D.  C.,  Va.), 220 

Boston  C.  of  C.  v.  L.  S.  &  M.  S.  E.  Co.  (1  I.  C.  C.,  436), 74,  76, 153 

Boston  F.  &  P.  Ex.  v.  N.  Y.  &  N.  E.  (4  L  C.  C.,  664), 33, 

72,  74,  82,  83,  84, 113, 144, 145 

Bovaird  Supply  Co.  v.  A.  T.  &  S.  F.  E.  Co.  (13  I.  C.  C.,  56), 150 

Bowman  v.  C.  &  N.  W.  E.  (125  U.  S.,  456), 41 

Boyer,  TJ.  S.  v.  (85  Fed.,  425),  41 

Boyer  v.  C.  O.  &  S.  W.  E.  Co.  (7  I.  C.  C.,  55), 140 

Boyle  v.  Zacharie  (6  Pet.,  648) ,   242 

Brabham  v.  A.  C.  L.  E.  Co.  (11  I.  C.  C.,  464),  44,  45 

Bradford  v.  Brown  (22  App.  D.  C.,  445), 187 

Bradshaw  v.  Earnshaw  (11  App.  D.  C.,  495),  187 

Brewer  &  Hanleiter  v.  L.  &  N.  E,  Co.  (7  I.  C.  C.,  224), 78,  80 

Bright  v.  Eynon  (1  Burr,  395),  181 


TABLE  OP  CASES  403 

Page 

Brimson,  I.  C.  C.  v.  (154  U.  S.,  447),  50, 162,  240,  241,  259,  261 

Brine,  U.  S.  v.  (D.  C.,  Ohio),   261 

Brinkmeier,  M.  P.  E.  Co.  v.  (S.  C.,  Kana.,  Apr.  6,  1907), 55 

Broadrup,  Blagden  v.  (2  H.  &  H.,  278),  187 

Brockway  v.  U.  &  D.  E.  Co.  (8  I.  C.  C.,  21), 76 

Brooklyn  Cooperage  Co.,  U.  S.  v.   (C.  C.,  N.  Y.),   222 

Brown,  Bradford  v.  (22  App.  D.  C.,  445),  187 

Brown,  re  (C.  C.,  Pa.),   261 

Brown  v.  Houston  (114  U.  S.,  622),   41 

Brown  v.  Md.    (12  Wheat.,  419),   41 

Brown  v.   Slater    (23   App.,  51),    187 

Brown  v.  Walker  (161  U.  S.,  591;  70  Fed.,  46),  162 

Brownell  v.  C.  &  C.  M.  E.  Co.  (5  I.  C.  C.,  638),  72, 76 

Buchanan  v.  N.  P.  E.  Co.  (5  I.  C.  C.,  7),  72 

Bucher  v.  Cheshire  E.   (125  U.  S.,  583),  257 

Buckeye  B.  Co.  v.  C.  C.  C.  &  St.  L.  E.  Co.  (9  I.  C.  C.,  620), 73,  76,  81 

Buerger,  U.  S.  v.   (D.  C.,  Wis.),   214 

Bunch,  U.  S.  v.  (D.  C.,  Ark.), 221 

Bunch  v.  C.  E.  I.  &  P.  E.  Co.  (13  I.  C.  C.,  377), 141 

Burgdorf,  D.  C.  v.  (6  App.  D.  C.,  465),  187 

Burgess  v.  Trans.  Frt.  B.  (13  I.  C.  C.,  668),  130, 132, 133, 135 

Burrell,  Greenvelt  v.    (1  Salk.,  263),    187 

Burrell  v.  Mont.   (194  U.  S.,  572),  161 

Burton  v.  U.  S.  (202  U.  S.,  344),   232 

Burton  Stock  Car  Co.  v.  C.  B.  &  Q.  E.  Co.  (1  I.  C.  C.,  132), 74 

Bus.  Men's  Assn.  v.  C.  &  N.  W.  E.  Co.  (2  I.  C.  C.,  73), 71,  74, 149 

Bus.  Men's  Assn.  v.  C.  St.  P.  M.  &  O.  E.  Co.  (2  I.  C  C.,  52), 71,  74,  79 

Bus.  Men's  League  v.  A.  T.  &  S.  F.  E.  Co.  (9  I.  C.  C.,  318), 78 

B.  Z.  &  C.  E.  Co.,  U.  S.  ex  rel.  v.  (C.  C.,  Ohio), 205 

C.  &  A.  E.  Co.  et  al.,  application  of  (8  I.  C.  C.,  643), 55 

C.  &  A.  E.  Co.,  B.  of  T.  v.  (4  I.  C.  C.,  158), 75, 77 

C.  &  A.  E.  Co.,  Chappelle  v.  (3  I.  C.  C.,  241),  71 

C.  &  A.  E.  Co.,  C.  E.  I.  &  P.  E.  Co.  v.  (3  I.  C.  C.,  450), 71, 82 

C.  &  A.  E.  Co.,  Leonard  v.  (3  I.  C.  C.,  241), 44,  71 

C.  &  A.  E.  Co.,  Manning  v.  (13  I.  C.  C.,  125), 17, 43 

C.  &  A.  E.  Co.,  Traer,  rec.  v.  (13  I.  C.  C.,  451), 58,  206 

C.  &  A.  E.  Co.  et  al.,  U.  S.  v.  (D.  C.,  111.),  221 

C.  &  A.  E.  Co.  et  al.,  IT.  S.  v.  (D.  C.,  Mo.), 222 

C.  &  A.  E.  Co.,  U.  S.  v.  (D.  C.,  Mo.),  219 

C.  &  A.  E.  Co.,  Vincent  v.  (49  111.,  33),  195 

C.  &  A.  E.  Co.  v.  I.  C.  C.  (C.  C.,  111.,  1908), 58,  206 

C.  &  A.  E.  Co.  v.  P.  E.  Co.  (1  I.  C.  C.,  86), 79 

C.  &  C.  M.  E.  Co.,  Brownell  v.  (5  I.  C.  C.,  638), 72,  76 

C.  &  G.  T.  E.  Co.,  Larrison  v.  (1  I.  C.  C.,  147),  74,  84 

C.  &  G.  T.  E.  Co.,  Mich.  Cong.  Water  Co.  v.  (21.  C.  C.,  594),  .  .71,  77,84, 109, 117 

C.  &  G.  T.  E.  Co.,  Potter  Mfg.  Co.  v.  (5  I.  C.  C.,  514), 72,  76,  78 

C.  &  M.  E.  E.  Co.  v.  I.  C.  E.  Co.  (13  I.  C.  C.,  20), 168 

C.  &  M.  V.  E.  Co.,  Parks  v.  (10  I.  C.  C.,  47), 79 

C.  &  N.  W.  E.  Co.,  Bus.  Men's  Assn.  v.  (2  I.  C.  C.,  73), 71,  74, 149 

C.  &  N.  W.  E.  Co.,  Cardiff  C.  Co.  v.  (13  I.  C.  C.,  471), 168 

C.  &.  N.  W.  E.  Co.,  Chicago  Fire  Proof  C.  Co.  v.  (8  I.  C.  C.,  316),  . .  .78,  79, 81,  82 


404  TABLE  OF  CASES 

Page 

C.  &  N.  W.  B.  Co.,  Com.  Club  v.  (7  I.  C.  C.,  386), 78 

C.  &  N.  W.  B.  Co.,  C.  E.  &  I.  C.  E.  &  L.  Co.  v.  (13  I.  C.  C.,  250), 27, 168 

C.  &  N.  W.  E.  Co.,  Junod  v.  (47  Fed.,  290),  171 

C.  &  N.  W.  E.  Co.,  La  SaUe  &  B.  C.  E.  Co.  v.  (13  I.  C.  C.,  610), 31, 43 

C.  &  N.  W.  E.  Co.,  Logan  v.  (2  I.  C.  C.,  604), 71,  77, 79 

C.  &  N.  W.  E.  Co.,  Macloon  v.  (5  I.  C.  C.,  84), 23,  31,  72,  83,  84 

C.  &  N.  W.  E.  Co.,  Marshall  Oil  Co.  v.  (14  I.  C.  C.,  210), 44 

C.  &  N.  W.  E.  Co.,  Osborne  v.  (48  Fed.,  49),  171 

C.  &  N.  W.  E.  Co.,  Bend  v.  (2  I.  C.  C.,  540), 76,  79 

C.  &  N.  W.  E.  Co.,  Sheetman  v.  (13  L  C.  C.,  167), 168 

C.  &  N.  W.  E.  Co.,  U.  S.  v.  (C.  C.,  111.), 243 

C.  &  N.  W.  E.  Co.,  U.  S.  v.  (D.  C.,  Colo.  Nov.  25,  1907), 55 

C.  &  N.  W.  E.  Co.  v.  Osborne  (52  Fed.,  914),  66, 170 

C.  &  O.  E.  Co.,  U.  8.  v.  (C.  C.,  Va.), 221 

C.  &  O.  E.  Co.,  U.  S.  v.  (C.  C.,  Va.), 243 

C.  &  S.  E.  Co.,  Savannah  Bu.  of  Frt.  v.  (7  I.  C.  C.,  601), 44,  72,  76,  78,  80 

C.  &  W.  B.  Co.,  Harwell  v.  (1  I.  C.  C.,  236), 74,  76,  79, 117, 121, 151 

C.  B.  &  Q.  E.  Co.,  Burton  Stock  Car  Co.  v.  (1  L  C.  C.,  132), 74 

C.  B.  &  Q.  E.  Co.,  Cattle  Eaisers'  Assn.  v.  (10  I.  C.  C.,  83), 30, 

83, 93,  95, 103, 110, 134, 135, 140 

C.  B.  &  Q.  E.  Co.,  Cattle  Eaisers'  Assn.  v.  (11  I.  C.  C.,  277), 184 

C.  B.  &  Q.  E.  Co.,  I.  C.  C.  v.  (94  Fed.,  272), 262 

C.  B.  &  Q.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  HL), 235 

C.  B.  &  Q.  E.  Co.,  Lowry  v.  (46  Fed.,  83), 194 

C.  B.  &  Q.  E.  Co.,  Martin  v.  (2  I.  C.  C.,  25), 71,  74,  76 

C.  B.  &  Q.  E.  Co.,  Traer,  rec.  v.  (14  I.  C.  C.,  165), 68 

C.  B.  &  Q.  E.  Co.,  U.  S.  v.  (D.  C.,  Mo.),  221 

C.  B.  &  Q.  E.  Co.,  U.  S.  v.  (D.  C.,  HI.), 219 

C.  B.  &  Q.  E.  Co.  v.  B.  C.  E.  &  N.  E.  Co.  (34  Fed.,  481), 22, 195 

C.  B.  &  Q.  E.  Co.  v.  Corn  Belt  M.  P.  Assn.  (14  I.  C.  C.,  376), 44 

C.  C.  C.  &  St.  L.  E.  Co.,  Buckeye  B.  Co.  v.  (9  I.  C.  C.,  620), 73,  76,  81 

C.  C.  C.  &  St.  L.  E.  Co.,  Flaccus  G.  Co.  v.  (14  I.  C.  C.,  333), 31 

C.  C.  C.  &  St.  L.  E.  Co.,  Proctor  &  Gamble  v.  (4  I.  C.  C.,  443), 183 

C.  C.  C.  &  St.  L.  E.  Co.,  U.  S.  v.  (D.  C.,  Ohio), 212 

C.  C.  C.  &  St.  L.  E.  Co.,  Wrigley  v.  (10  I.  C.  C.,  412), 73,  76, 81 

C.  C.  &  S.  E.  Co.,  U.  S.  v.  (D.  C.,  Ohio), 212 

Central  E.  Co.,  Mershon  v.  (10  I.  C.  C.,  456), 79 

C.  G.  &  S.  W.  E.  Co.,  Mo.  &  111.  E.  E.  T.  &  L.  Co.  v.  (1  I.  C.  C.,  30),  ...       36,  73 

C.  G.  W  E.  Co.,  Cattle  Eaisers'  Assn.  v.  (I.  C.  C.  Docket,  939), 206 

C.  G.  W.  E.  Co.,  Chicago  Live  S.  Ex.  v.  (10  I.  C.  C.,  428), 73,  79,  83 

C.  G.  W.  E.  Co.,  Goodhue  v.   (11  I.  C.  C.,  683),  79,  81 

C.  G.  W.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  HL), 238 

C.  G.  W.  E.  Co.,  U.  S.  v.  (D  C.,  Iowa,  May  6,  1908), 55 

C.  &  O.  Canal  Co.  v.  Knapp  (9  Pet.,  541), 110 

C.  H.  &  D.  E.  Co.,  Gallogly  &  Firestine  v.  (11  I.  C.  C.,  1), 83, 166 

C.  H.  &  D.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ohio), 238 

C.  H.  &  D.  E.  Co.,  Proctor  &  Gamble  v.  (4  I.  C.  C.,  87), 71, 73,  77,  84, 177 

C.  H.  &  D.  E.  Co.,  re  (6  I.  C.  C.,  323), 25,  80 

C.  H.  &  D.  E.  Co.,  U.  S.  v.  (D.  C.,  Ohio,  June  24,  1908), 55 

C.  H.  &  D.  E.  Co.  v.  I.  C.  C.  (206  U.  S.,  142), 257 

Chicago  T.  &  L.  E.  Co.,  Pratt  L.  Co.  v.  (10  I.  C.  C.,  29), 78 

C.  I.  &  L.  E.  Co.,  U.  S.  v.  (C.  C.,  111.),  244 


TABLE  OP  CASES  405 


C.  I.  &  L.  E.  Co.,  Van  Camp  B.  V.  Co.  v.  (12  I.  C.  C.,  80),  ...........  139 

C.  J.  &  M.  E.  Co.,  Tecumseh  Celery  Co.  v.  (5  I.  C.  C.,  663),  .....  72,  76,  78,  83,  84 

0.  K.  &  S.  E.  Co.,  U.  S.  ex  rel.  v.  (C.  C.,  Mich.),  .....................  205 

C.  M.  &  St.  P.  E.  Co.,  B.  of  T.  v.  (5  I.  C.  C.,  264),  .................  72,  77,  122 

C.  M.  &  St.  P.  E.  Co.,  B.  of  T.  Union  v.  (1  L  C.  C.,  215),  .............  76 

C.  M.  &  St.  P.  E.  Co.,  Coomes  &  McGraw  v.  (13  I.  C.  C.,  192),  ........  133 

C.  M.  &  St.  P.  E.  Co.,  Hastings  M.  Co.  v.  (11  I.  C.  C.,  675),  ..........  73,  79,  81 

C.  M.  &  St.  P.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Minn),  .....................  236 

C.  M.  &  St.  P.  E.  Co.,  Jewett  Bros.  &  Jewett  v.  (156  Fed.,  160),  ......  209 

C.  M.  &  St.  P.  E.  Co.,  La  Crosse  M.  &  J.  Union  v.  (1  I.  C.  C.,  629),  ____   102,  106 

C.  M.  &  St.  P.  E.  Co.,  Listman  M.  Co.  v.  (8  I.  C.  C.,  47),  .............  76 

C.  M.  &  St.  P.  E.  Co.,  Mt.  Vernon  M.  Co.  v.  (7  I.  C.  C.,  194),  .........  78 

C.  M.  &  St.  P.  E.  Co.,  Ottumwa  B.  Co.  v.  (14  I.  C.  C.,  121),  ..........  150 

C.  M.  &  St.  P.  E.  Co.,  Baymond  v.  (1  L  C.  C.,  230),  .................     76,  166 

C.  M.  &  St.  P.  E.  Co.,  U.  S.  v.  (D.  C.,  Mo.),  ........................  219 

C.  M.  &  St.  P.  E.  Co.,  U.  S.  v.  (D.  C.,  N.  Y.),  ........................  226 

C.  M.  &  St.  P.  E.  Co.,  U.  S.  v.  (149  Fed.,  486),  ......................  54 

C.  M.  &  St.  P.  E.  Co.  v.  Becker  (32  Fed.,  849),  .............  .  ........  36 

C.  M.  &  St.  P.  E.  Co.  v.  Minn.  (134  U.  S.,  418),  .....................     15,  195 

C.  M.  &  St.  P.  E.  Co.  v.  Tompkins  ,176  U.  S.,  171),  ..................  385 

C.  M.  &  St.  P.  E.  Co.  v.  Voelker  (129  Fed.,  522),  ...................  54 

C.  M.  &  St.  P.  E.  Co.,  Van  Patten  v.  (74  Fed.,  981),  ............  22,  194,  202,  233 

C.  M.  &  St.  P.  E.  Co.,  Van  Patten  v.  (81  Fed.,  547),  .................  65 

C.  M.  &  St.  P.  E.  Co.,  Voelker  v.  (116  Fed.,  867),  ...................  54 

C.  N.  O.  &  T.  P.  E.  Co.,  Frt.  Bu.  v.  (6  I.  C.  C.,  195),  .................  79,  81,  83 

C.  N.  O.  &  T.  P.  E.  Co.,  I.  C.  C.  v.  (64  Fed.,  904),  ..................  262 

C.  N.  O.  &  T.  P.  E.  Co.,  I.  C.  C.  v.  (56  Fed.,  925),  ............  171,  234,  262,  263 

C.  N.  O.  &  T.  P.  E.  Co.,  I.  C.  C.  v.  (64  Fed.,  981),  ................  16,  253,  263 

C.  N.  O.  &  T.  P.  E.  Co.,  I.  C.  C.,  v.  (76  Fed.,  183),  ..................  16 

C.  N.  O.  &  T.  P.  E.  Co.,  I.  C.  C.  v.  (167  U.  S.,  479),  ......  vi,  vii,  15,  16,  17,  45,  47 

C.  N.  O.  &  T.  P.  E.  Co.,  L  C.  C.  v.  (C.  C.,  Ga.),  .....................   235,  236 

C.  N.  O.  &  T.  P.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ohio),  ....................  236 

C.  N.  O.  &  T.  P.  E.  Co.,  James,  etc.  B.  Co.  v.  (4  I.  C.  C..  744),  .....  39,  74,  77,  80 

C.  N.  O.  &  T.  P.  E.  Co.,  New  Orleans  C.  Ex.  v.  (2  I.  C.  C.,  375),  .34,  71,  75,  77,  121 
C.  N.  O.  &  T.  P.  E.  Co.,  E.  Com.  v.  (51.  C.  C.,  324),  .....  72,  74,  75,  78,  80,  83,  84 

C.  N.  O.  &  T.  P.  E.  Co.,  E.  Com.  v.  (7  I.  C.  C.,  380),  .................  80 

C.  N.  O.  &  T.  P.  E.  Co.  v.  I.  C.  C.  (162  U.  S.,  184),  ........  ..........  15, 

16,  33,  36,  37,  40,  45,  66,  119,  166,  257,  263,  266 
C.  O.  &  S.  W.  E.  Co.,  Boyer  v.  (7  I.  C.  C.,  55),  ......................  140 

C.  of  C.  v.  F.  &  P.  W.  E.  Co.  (2  L  C.  C.,  553),  ......................  118 

C.  of  Ga.  E.,  B.  of  T.  v.  (8  I.  C.  C.,  142),  ..........................  78 

C.  of  Ga.  E.,  Kiser  Co.  v.  (158  Fed.,  193),  ..........................  208 

C.  P.  &  St.  L.  E.  Co.,  U.  S.  v.  (143  Fed.,  353),  .....................  54 

C.  P.  E.  Co.,  James  &  Abbott  v.  (5  I.  C.  C.,  612),  ...............  72,  78,  83,  113 

C.  P.  &  V.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  N.  C.),  .........................  237 

C.  P.  &  V.  E.  Co.,  Wilmington  Tariff  Assn.  v.  (9  I.  C.  C.,  118),  ........  78 

C.  E.  Co.,  N.  J.  F.  Ex.  v.  (2  I.  C.  C.,  142),  .........................  34,  40,  73 

C.  E.  Co.  v.  Warren-Ehret  (8  I.  C.  C.,  598),  .........................  119 

C.  E.  &  C.  E.  Co.,  Hamilton  &  Brown  v.  (4  I.  C.  C.,  686),  .  .  .75,  77,  80,  82,  84,  121 
C.  E.  &  I.  C.  E.  &  L.  Co.  v.  C.  &  N.  W.  E.  Co.  (13  I.  C.  C.,  250),  ......     27,  168 

C.  E.  I.  &  P.  E.  Co.,  Alford  v.  (3  I.  C.  C.,  519),  .....................       75,  79 

C.  E.  I.  &  P.  E.  Co.,  Barton  v.  (5  I.  C.  C.,  299),  ....................  72,  77,  80 


406  TABLE  OF  CASES 

Page 

C.  B.  I.  &  P.  E.  Co.,  Bunch  v.  (13  I.  C.  C.,  377), 141 

C.  E.  I.  &  P.  E.  Co.,  Com.  Club  v.  (6  I.  C.  C.,  647), 43 

C.  E.  I.  &  P.  E.  Co.,  Haines  v.  (13  I.  C.  C.,  214), 108 

C.  E.  I.  &  P.  E.  Co.,  Hussey  v.  (13  I.  C.  C,  366), 18 

C.  E.  I.  &  P.  E.  Co.,  Hussey  v.  (14  I.  C.  C.,  215), 184 

C.  E.  I.  &  P.  E.  Co.,  Mason  v.  (12  I.  C.  C.,  61), 158 

C.  E.  I.  &  P.  E.  Co.,  Mayor,  etc.,  of  W.  v.  (9  I.  C.  C.,  569), 73,  81 

C.  E.  I.  &  P.  E.  Co.,  Ocheltree  G.  Co.  v.  (13  I.  C.  C.,  238), 141 

C.  E.  I.  &  P.  E.  Co.,  Okla.  and  Ark.  C.  T.  Bu.  v.  (I.  C.  C.  Docket,  1097),          321 

C.  E.  I.  &  P.  E.  Co.,  Sunderland  v.  (158  Fed.,  877), 210 

C.  E.  I.  &  P.  E.  Co.,  U.  S.,  v.  (D.  C.,  Mo.,  Feb.  21,  1908), 55 

C.  E.  I.  &  P.  E.  Co.,  U.  S.  v.  (D.  C.,  N.  Y.), 226 

C.  E.  I.  &  P.  E.  Co.  v.  C.  &  A.  E.  Co.  (3  I.  C.  C.,  450), 71,  82 

C.  E.  I.  &  P.  E.  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (1  I.  C.  C.,  86), 79 

C.  S.  E.  Co.  v.  International  B.  Co.  (7  Fed.,  653), 195 

C.  St.  P.  &  K.  C.  E.  Co.,  re  (2  I.  C.  C.,  231), 68,  71,  79, 121 

C.  St.  P.  M.  &  O.  E.  Co.,  Am.  Grass  Twine  Co.  v.  (12  I.  C.  C.,  141),  ...  139 

C.  St.  P.  M.  &  O.  E.  Co.,  Bus.  Men's  Assn.  v.  (2  I.  C.  C.,  52), 71,  74,  79 

C.  St.  P.  M.  &  O.  E.  Co.,  Johnson  v.  (9  I.  C.  C.,  221), 73,  78,  82, 168 

C.  St.  P.  M.  &  O.  E.  Co.,  et  at,  U.  S.  v.  (D.  C.,  Minn.), 224 

C.  V.  E.  Co.,  City  Gas  Co.  v  (11  I.  C.  C.,  104), 76 

C.  V.  E.  Co.,  Standard  L.  &  S.  Co.  v.  (I.  C.  C.  Docket,  1650), 334 

C.  V.  E.  Co.,  U.  S.  v.  (D.  C.,  N.  Y.),  226 

C.  W.  &  B.  E.  Co.,  Eice  v.  (3  I.  C.  C.,  186), 83, 148, 149 

C.  W.  &  B.  E.  Co.,  Eice  v.  (5  I.  C.  C.,  193), 23,  72,  75,  77 

Cal.  Com.  Assn.  v.  Wells,  Fargo  &  Co.  (14  I.  C.  C.,  422), 68 

Gal.  Pine  Box  &  L.  Co.,  U.  S.  v.  (D.  C.,  Cal.), 228 

Calder,  U.  S.  v  (D.  C.,  Wash.),   213 

Call  Pub.  Co.,  W.  TJ.  Tel.  Co.  v.  (181  U.  S.,  92), 194 

Galloway  v.  L.  &  N.  E.  Co.  (7  I.  C.  C.,  431), 72,  78,  80 

Camden  Iron  Works,  U.  S.  v.  (145  Fed.,  406;  150  Fed.,  214), 228 

Camden  Iron  Works,  U.  S.  v.  (150  Fed.,  214),   .' 33 

Campbell,  U.  S.  v.  (D.  C.,  Pa.),  218 

Canadian  Pacific  Passenger  Eate  Differentials,  re  (8  I.  C.  C.,  71), 80 

Cannon,  People  v.  (139  N.  Y.,  32;  36  Am.  St.  Eep.), 258 

Capdevielle,  IT.  S.  v.  (118  Fed.,  809),  203 

Capehart  v.  L.  &  N.  E.  Co.  (4  I.  C.  C.,  265), 18, 31,  74,  75,  77,  79,  84 

Capital  Traction  Co.  v.  Hoff  (174  U.  S.,  1), 187 

Capps,  U.  S.  v.   (D.  C.,  Ga.),   215 

Cardiff  C.  Co.  v.  C.  &  N.  W.  E.  Co.  (13  I.  C.  C.,  471), 168 

Carlisle  v.  M.  P.  E.  Co.  (168  Mo.,  652), 22 

Carnan,  Williamson  v.  (1  G.  &  J.,  184),  187 

Carriage  of  Persons  Free,  etc.,  re  (5  I.  C.  C.,  69), 23,  75,  84 

Cary  v.  E.  S.  E.  Co.   (7  I.  C.  C.,  286),  45,  72,  73, 78,  79 

Casey  v.  Galli   (94  U.  S.,  673),   154 

Castle  v.  B.  &  O.  E.  Co.   (8  I.  C.  C.,  333),  151 

Gator  v.  S.  P.  E.  Co.  (6  I.  C.  C.,  113), 84 

Cattle  Eaisers'  Assn.  v.  C.  B.  &  Q.  E.  Co.  (10  L  C.  C.,  83), 30, 

83,  93,  95, 103, 110, 134, 135, 140 

Cattle  Eaisers'  Assn.  v.  C.  B.  &  Q.  E.  Co.  (11  L  C.  C.,  277), 184 

Cattle  Eaisers'  Assn.  v.  C.  G.  W.  E.  Co.  (I.  C.  C.  Docket,  939), 206 


TABLE  OP  CASES  407 

Page 

Cattle  Kaisers'  Assn.  v.  Ft.  W.  &  D.  C.  E.  Co.  (7  I.  C.  C.,  513), 23, 

36,  37,  61,  72, 73, 76,  78, 83, 113, 155, 185 

Cattle  Kaisers'  Assn.  v.  G.  H.  &  S.  A.  K.  Co.  (12  I.  C.  C.,  20), 139 

Cattle  Raisers'  Assn.  v.  G.  H.  &  S.  A.  K.  Co.  (12  I.  C.  C.,  469), 168 

Cattle  Kaisers'  Assn.  v.  M.  K.  &  T.  R.  Co.  (12  I.  C.  C.,  1), 83 

Cattle  Raisers'  Assn.  v.  M.  K.  &  T.  R.  Co.  (13  I.  C.  C.,  418), 133, 145 

Cauble,  Hoffman  v.  (86  Ind.,  591),  165 

Central  Stock  Yards  Co.  v.  L.  &  N.  B.  Co.  (47  Fed.,  771), 22 

Central  Trust  Co.  v.  E.  T.  V.  &  G.  E.  Co.  (59  Fed.,  523), 254 

Central  Y.  P.  Assn.  v.  I.  C.  R.  Co.  (10  t.  C.  C.,  505),  . .  .61,  73,  76,  78,  79, 113, 176 

Chamber  of  Commerce  v  G.  N.  R.  Co.  (5  I.  C.  C.,  571), 102 

Chamber  of  Commerce  v.  S.  E.  (10  I.  C.  C.,  Ill), 73,  81 

Chamber  of  Commerce  v.  F.  &  P.  M.  E.  Co.  (2  I.  C.  C.,  553), 74 

Chamber  of  Commerce  v.  G.  N.  E.  Co.  (5  I.  C.  C.,  571), 72,  74, 78 

Chamberlain  v.  Edwards  (18  App.  D.  C.,  332),  187 

Chandler  C.  O.  Co.  v.  Ft.  S.  &  W.  E.  Co.  (13  I.  C.  C.,  473), 17, 18 

Chapman  &  Dewey  L.  Co.,  TJ.  S.  v.  (D.  C.,  Mo.),  217 

Chappelle  v.  C.  &  A.  R.  Co.  (13  I.  C.  C.,  241),  71 

Cheshire  R.,  Bucher  v.  (125  U.  S.,  583), 257 

Chicago  Fire  Proof  C.  Co.  v.  C.  &  N.  W.  E.  Co.  (8  I.  C.  C.,  316), 78,  79,  81,  82 

Chicago  Live  S.  Ex.  v.  C.  G.  W.  E.  Co.  (10  I.  C.  C.,  428), 73,  79,  83 

China  &  Japan  T.  Co.  v.  Ga.  E.  Co.  (12  I.  C.  C.,  236), 62 

Cist  v.  M.  C.  E.  Co.  (10  I.  C.  C.,  217), 19, 39,  73 

City  Gas  Co.  v.  C.  V.  E.  Co.  (11  I.  C.  C.,  104), 76 

Clark,  Hendley  v.  (8  App.  D.  C.,  165),  187 

Clark,  U.  S.  v.  (D.  C.,  S.  C.), 221 

Clyde  S.  S.  Co.,  I.  C.  C.  v.  (C.  t£.,  Ga.), 236 

Clyde  S.  S.  Co.,  I.  C.  C.  v.  (181  U.  S.,  29), 185 

Clyde  S.  S.  Co.,  E.  Com.  v.  (5  I.  C.  C.,  324), 33, 

35, 46, 68,  72,  74,  75,  77,  80,  83,  84, 109, 114, 171 

Co.  of  Mobile  v.  Kimball  (102  TJ.  S.,  705),  186 

Coe  v.  Errol   (116  U.  S.,  517),    41 

Coe  v.  L.  &  N.  E.  Co.  (3  Fed.,  755), 195 

Colo.  F.  &  I.  Co.  v.  S.  P.  Co.  (6  I.  C.  C.,  488), 80, 137 

Colo.  F.  &  I.  Co.,  U.  S.  v.  (D.  C.,  N.  Mex.), 220 

Columbia  Conduit  Co.  v.  Com.  (90  Pa.  307),  34 

Com.  Club  v.  C.  &  N.  W.  E.  Co.  (7  I.  C.  C.,  386), 78 

Com.  Club.  v.  C.  E.  I.  &  P.  E.  Co.  (6  I.  C.  C.,  647), 43 

Com.  Club  v.  N.  P.  E.  Co.  (13  I.  C.  C.,  288), 105, 120 

Com.  etc.  Assn.  v.  L.  &  N.  E.  Co.  (12  I.  C.  C.,  372), 81 

Commercial  Union,  Lykes  S.  S.  Co.  v.  (13  I.  C.  C.,  310), 20, 39,  66,  68 

Commissioners,  Heine  v.  (19  Wall.,  655),  ; 203 

Com.  v.  L.  &  N.  E.  Co.  v.  E.  Com.,  Ky.,  1906), 386 

Com.,  Columbia  Conduit  Co.  v.  (90  Pa.,  307),  34 

Conkey  Co.,  Bessette  v.  (194  U.  S.,  324),  240, 241 

Conn.,  etc.,  Ins.  Co.  v.  Union,  etc.  Co.  (112  U.  S.,  255), 257 

Conn.  Mut.  L.  Ins.  Co.,  Behr  v.  (2  Flipp.,  692),  153 

Connor  v.  V.  S.  &  P.  E.  Co.  (36  Fed.,  273), 194 

Consol.  Forwarding  Co.  v.  S.  P.  E.  Co.  (9  I.  C.  C.,  182), 82 

Consol.  Forwarding  Co.  v.  S.  P.  E.  Co.  (10  I.  C.  C.,  590), 81 

Coomes  &  McGraw  v.  C.  M.  &  St.  P.  R.  Co.  (13  I.  C.  C.,  192), 133 

Cooper  v.  Reynolds  (10  Wall.,  308),   194 


408  TABLE  OP  CASES 

Page 

Copp  v.  L.  &  N.  E.  Co.  (43  La.  Ann.,  511), 22 

Copp  v.  L.  &  N.  E.  Co.  (50  Fed.,  164),  94,  238 

Cordele  Machine  Shop  v.  L.  &  N.  E.  Co.  (6  L  C.  C.,  361), 80 

Corn  Belt  Meat  Prod.  Assn.  v.  C.  B.  &  Q.  E.  Co.  (14  L  C.  C.,  376),  ...  44 

Cosmopolitan  8.  Co.  v.  Hamburg- Am.  P.  Co.  (13  L  C.  C.,  266), 17, 

18, 19, 25, 36, 39, 43,  68,  111,  119, 123 

Council  v.  W.  &  A.  E.  Co.  (1  I.  C.  C.,  339), 32, 43,  74,  76,  82,  83, 130 

Counselman,  re   (D.  C.,  HI),   261 

Counselman  v.  Hitchcock  (142  U.  S.,  547),  161, 162 

Cox,  T.  &  P.  E.  Co.  v.  (145  U.  S.,  593),  254 

Coxe  Bros.  &  Co.  v.  L.  V.  E.  Co.  (4  I.  C.  C.,  535), 72,  75,  77,  79,  83 

Crane,  U.  S.  v.  (D.  C.,  Mo.),  213 

Crawford  v.  N.  Y.  C.  &  H.  E.  Co.  (10  Am.  Neg.  Eep.,  166), 54 

Creswell,  Maxwell  v.  (3  MacA.,  374), 187 

Crews  v.  E.  &  D.  E.  Co.  (1  L  C.  C.,  401), 74,  76 

Crocker,  Norris  v.  (13  How.,  429),   18 

Crosby,  U.  S.  v.  (D.  C.,  Mo.), 219 

Cudahy  P.  Co.,  U.  S.  v.  (D.  C.,  Mo.), 219 

D.  &  H.  C.  Co.,  Thatcher  v.  (1  I.  C.  C.,  152), 79 

D.  &  H.  Co.,  U.  S.  ex  rel.  v.  (C.  C.,  Mass.), 205 

D.  &  H.  Co.,  U.  S.  v.  (D.  C.,  N.  Y.), 220 

D.  &  N.  O.  E.  Co.,  A.  T.  &  S.  P.  E.  Co.  v.  (110  U.  S.,  683), 171 

D.  &  N.  O.  E.  Co.  v.  A.  T.  &  S.  F.  E.  Co.  (15  Fed.,  650), 195 

D.  &  E.  G.  Co.,  U.  8.  v.  (C.  C.  A.,  8th  Circuit,  Aug.  22,  1908), 55 

D.  G.  H.  &  M.  E.  Co.,  I.  C.  C.  v.  (167  U.  S.,  642), 37 

D.  G.  H.  &  M.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Mich.), 235 

D.  G.  H.  &M.  E.  Co.,  L  C.  C.  v.  (57  Fed.,  1005), 24,50,113 

D.  G.  H.  &  M.  E.  Co.,  Stone  &  Garten  v.  (3  I.  C.  C.,  613), 75,  80, 82, 153 

D.  G.  H.  &  M.  E.  Co.  v.  L  C.  C.,  (74  Fed.,  839), 171 

D.  G.  H.  &  M.  E.  Co.  v.  I.  C.  C.  (74  Fed.,  803), 66, 173,  234 

D.  L.  &  W.  E.  Co.,  Haddock  v.  (4  I.  C.  C.,  296), 71,  75,  83,  84, 149 

D.  L.  &  W.  E.  Co.,  L  C.  C.  v.  (64  Fed.,  723), 235 

D.  L.  &  W.  E.  Co.,  Milk  Producers'  &  P.  Assn.  v.  (7  I.  C.  C.,  92), 34, 

42,  72,  78,  80, 113, 114 

D.  L.  &  W.  E.  Co.,  Page  v.  (6  I.  C.  C.,  548), 28,46,117 

D.  L.  &  W.  E.  Co.,  Preston  &  Davis  v.  (12  I.  C.  C.,  115), 139,  206 

D.  L.  &  W.  E.  Co.,  E.  V.  E.  Co.  v.  (14  I.  C.  C.,  191), 27, 168,  207 

D.  L.  &  W.  E.  Co.,  Shamberg  v.  (4  I.  C.  C.,  630), 74,  75,  77,  82 

D.  L.  &  W.  E.  Co.,  U.  S.  v.  (C.  C.,  N.  Y.), 222 

D.  L.  &  W.  E.  Co.,  U.  S.  v.  (40  Fed.,  101), 204 

D.  L.  &  W.  E.  Co.,  U.  S.  v.  (152  Fed.,  269), 34 

D.  L.  &  W.  E.  Co.  v.  I.  C.  C.  (155  Fed.,  512), 343, 371,  373 

D.  L.  &  W.  E.  Co.  v.  I.  C.  C.  and  Preston  &  Davis  (C.  C.,  N.  Y.), 206,  248 

D.  L.  &  W.  B,  Co.  v.  I.  C.  C.  and  E.  V.  E.  Co.  (C.  C.,  N.  Y.), 207,  248 

D.  E.  Co.,  U.  8.  v.  (I.  C.  C.  Docket,  1699),  113 

D.  S.  E.  Co.,  Paxton  Tie  Co.  v.  (10  I.  C.  C.,  422), 78,  82 

D.  8.  S.  &  A.  E.  Co.,  Duluth  8.  Co.  v.  (10  I.  C.  C.,  489), 73, 76,  79 

D.  S.  S.  &  A.  B,  Co.,  Forster  Bros.  Co.  v.  (14  I.  C.  C.,  232), 133 

Dallas  Frt.  Bu.  v.  A.  &  N.  w.  E.  Co.  (9  I.  C.  C.,  68), 81 

Dallas  Frt.  Bu.  v.  T.  &  P.  E.  Co.  (8  I.  C.  C.,  33), 80 

Daniel  Ball,  The  (10  Wall.,  565),  37 


TABLE  OP  CASES  409 

Page 

Daniels  v.  G.  N.  E.  Co.  (6  I.  C.  C.,  458),  117 

Danville  v.  S.  E.  Co.  (8  I.  C.  C.,  409), 24,  78,  81 

Davis  v.  Gray  (16  Wall.,  218),  254 

Davis  v.  P.  M.  E.  Co.  (10  I.  C.  C.,  405), 82, 83 

Davis  v.  IT.  S.  (43  C.  C.  A.,  448;  104  Fed.,  136),  232 

D.  C.  Bates  v.  (1  MacA.,  423), 187 

D.  C.,  Great  Falls  Ice  Co.  v.  (19  D.  C.,  327), 187 

D.  C.,  Padgett  v.  (17  App.  D.  C.,  255),  187 

D.  C.  Sullivan  v.  (19  App.  D.  C.,  210), 187 

D.  C.  v.  Burgdorf  (6  App.  D.  C.,  465), 187 

D.  C.  v.  Libby  (9  App.  D.  C.,  321),  187 

D.  C.  v.  Washington  Gas-Light  Co.  (3  Mackey,  343), 187 

D.  C.,  Wood  v.  (6  Mackey,  142), 187 

Del.  State  Grange  v.  N.  Y.  P.  &  N.  E.  Co.  (2  I.  C.  C.,  309), 107 

Del.  State  Grange  v.  N.  Y.  P.  &  N.  E.  Co.  (4  I.  C.  C.,  588), 72, 80,  84 

Del.  State  Grange  v.  N.  Y.  P.  &  N.  E.  Co.  (5  I.  C.  C.,  161), 72 

Denison  L.  &  P.  Co.  v.  M.  K.  &  T.  E.  Co.  (10  I.  C.  C.,  337), 73 

Devereaux  Co.,  U.  S.  v.  (D.  C.,  Minn.), 224 

Dewey  Bros.  v.  B.  &  O.  E.  Co.  (11  I.  C.  C.,  474), 166 

Dick  &  Blair,  U.  S.  v.  (D.  C.,  Pa.), 214 

Differential  Bates  to  and  from  Atlantic  Ports,  re  (11  I.  C.  C.,  13),  . .  .18, 107, 123 

Disabled  Soldiers  and  Sailors,  re  (1  I.  C.  C.,  28),  42, 84 

Diver,  U.  S.  v.   (D.  C.,  Pa.),   218 

Divisions  of  Joint  Bates,  re   (10  I.  C.  C.,  385),   24,  76 

Dorr,  U.  S.  v.  (D.  C.,  Tenn.),  213 

Duluth  S.  Co.  v.  D.  S.  S.  &  A.  E.  E.  Co.  (10  I.  C.  C.,  489), 73,  76,  79 

Duluth-Superior  M.  Co.,  U.  S.  v.  (D.  C.,  Minn.),   225 

Duncan  v.  A.  T.  &  S.  F.  E.  Co.  (6  I.  C.  C.,  85), 43,  81 

Durant  v.  Essex  Co.  (74  U.  S.,  107), 186 

Durham  v.  I.  C.  E.  Co.  (12  I.  C.  C.,  37),  79,  81, 139 

Duval,  rec.,  Bishop  v.   (3  I.  C.  C.,  128),  42,45,46,83,183 

Duval,  rec.,  Harris  v.  (3  I.  C.  C.,  128),   83 

Durousseau  v.  U.  S.  (6  Cranch,  307), 70 

E.  P.  &  S.  W.  E.  Co.,  U.  S.  v.  (D.  C.,  Ariz.,  Jan.  3,  1907), 54 

E.  P.  &  S.  W.  E.  Co.,  U.  S.  v.  (D.  C.,  Tex.,  Apr.  8,  1907), 54 

E.  E.  Co.,  Eogers  Loc.  Works  v.  (20  N.  J.  Eq.,  379), 195 

E.  S.  E.  Co.,  Gary  v.  (7  I.  C.  C.,  286), 45,  72,  73, 78, 79 

E.  T.  V.  &  G.  B.  Co.,  B.  of  T.  v.  (5  I.  C.  C.,  546), 72,  78,  80 

E.  T.  V.  &  G.  E.  Co.,  Central  Trust  Co.  v.  (59  Fed.,  523), 254 

E.  T.  V.  &  G.  E.  Co.,  Farrar  v.  (1  I.  C.  C.,  480), 69 

E.  T.  V.  &  G.  E.  Co.,  Heck  v.  (1  I.  C.  C.,  495), 36, 43,  73,  76,  83 

E.  T.  V.  &  G.  E.  Co.,  I.  C.  C.  v.  (85  Fed.,  107), 65, 171,  262 

E.  T.  V.  &  G.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Tenn.), 236 

E.  T.  V.  &  G.  E.  Co.,  James  &  Abbott  v.  (3  I.  C.  C.,  225), 71,  77,  80 

E.  T.  V.  &  G.  E.  Co.,  L.  E.  &  M.  E.  Co.  v.  (13  L  C.  C.,  1), 68,  79, 194 

E.  T.  V.  &  G.  E.  Co.,  Pyle  &  Sons  v.  (1  I.  C.  C.,  465), 76 

E.  T.  V.  &  G.  E.  Co.  v.  I.  C.  C.  (181  U.  S.,  1), 185 

Earnshaw,  Bradshaw  v.   (11  App.  D.  C.,  495),   187 

Eau  Claire  B.  of  T.  v.  C.  M.  &  St.  P.  E.  Co.  (5  I.  C.  C.,  264), 72, 77, 122 

Eddleman  et  al.  v.  M.  V.  E.  Co.  (13  I.  C.  C.,  103), 31, 113 

Edmunds  v.  I.  C.  E.  Co.  (80  Fed.,  78),  22, 194, 233, 253 


410  TABLE  OP  CASES 

Page 

Edmundson,  U.  S.  v.  (D.  C.,  Mo.), 212 

Edwards,  Chamberlain  v.  (18  App.  D.  C.,  332), 187 

Egan,  U.  S.  v.  (D.  C.,  I1L), 212 

Egan,  U.  8.  v.   (D.  C.,  Minn.),  212 

Eichenberg  v.  S.  P.  Co.  (14  I.  C.  C.,  250), 70,  206 

Elvey  v.  I.  C.  E.  Co.  (3  I.  C.  C.,  652),  71,  75,  82 

Emert  v.  Mo.  (156  U.  S.,  292), 41 

England  v.  B.  &  O.  E.  Co.  (13  I.  C.  C.,  614), 30, 157, 158 

Enterprise  Mfg.  Co.  v.  G.  E.  Co.  (12  I.  C.  C.,  451), 62 

Epps  v.  State   (19  Ga.,  18),   165 

Erb  v.  Morash  (177  U.  S.,  584), 254 

Errol,  Coe  v.  (116  U.  S.,  517),  41 

Essex,  Durant  v.  (74  U.  S.,  107),  186 

Evans  v.  U.  P.  B.  Co.   (6  I.  C.  C.,  520), 55, 114, 118,  255 

Ex  parte  Koehler   (30  Fed.,  869),   36 

Ex  parte  McCardle  (7  Wall.,  514),  18 

Export  and  Domestic  Eates  on  Grain,  re  (8  I.  C.  C.,  214), 81,  82 

Export  Eates  from  Points  East  and  West  of  Miss.  Eiver,  re  (8  I.  C.  C., 

185),   78,  82 

Express  Companies,  re  (1  I.  C.  C.,  349), 17, 32,  67, 73 

Eynon,  Bright  v.  (1  Barr.,  395), 181 

/ 

F.  &  P.  M.  E.  Co.,  Chamber  of  Commerce  v.  (2  I.  C.  C.,  553), 74, 118 

F.  &  P.  M.  E.  Co.,  Mich.  Box  Co.  v.  (6  I.  C.  C.,  335), 140 

F.  C.  &  P.  E.  Co.,  Perry  v.  (5  I.  C.  C.,  97), 31,  32, 33,  47,  72,  80,  83, 134, 151 

F.  E.  Co.,  E.  Com.  v.  (8  I.  C.  C.,  1), 72 

Ft.  S.  &  W.  E.  Co.,  Chandler  C.  O.  Co.  v.  (13  I.  C.  C.,  473), 17, 18 

Ft.  8.  &  W.  E.  Co.,  Weleetka  L.  &  W.  Co.  v.  (12  I.  C.  C.,  503), 28, 168 

Ft.  W.  &  D.  C.  E.  Co.,  Cattle  Eaisers'  Assn.  v.  (7  I.  C.  C.,  513), 23, 

36, 37, 61,  72,  73,  76,  78, 83, 113, 155, 185 

Ft.  W.  &  D.  C.  E.  Co.,  Nobles  Bros.  Gro.  Co.  v.  (12  I.  C.  C.,  242),  ....  26 

Fain  &  Stamps  v.  A.  C.  L.  E.  Co.  (13  I.  C.  C.,  529), 133 

Farmers'  L.  &  T.  Co.,  Eeagan  v.  (154  U.  S.,  412), 66 

Farmers'  Warehouse  Co.  v.  L.  &  N.  E.  Co.  (12  I.  C.  C.,  457), 22 

Farrar  v.  E.  T.  V.  &  G.  E.  Co.  (1  L  C.  C.,  480), 69 

Farrar  v.  S.  E.  Co.  (11  I.  C.  C.,  640), 81, 134 

Farrell,  U.  S.  v.  (D.  C.,  Nebr.),  213 

Fell,  U.  S.  v.  (D.  C.,  111.),  213 

Ferreira,  U.  S.  v.  (13  How.,  40), 234 

Fewell  v.  E.  &  D.  E.  Co.  (7  I.  C.  C.,  354),  26,  80, 138 

Field,  U.  S.  v.  (D.  C.,  Mo.),  , .  213 

Filing  Joint  Tariffs,  re  (1  I.  C.  C.,  657), 73,  81 

Firmenich  v.  U.  S.    (D.  C.,  HI.),   213 

Fishback  v.  W.  TJ.  Tel.  Co.  (161  U.  S.,  96),  21 

Fitzgerald,  etc.,  Constr.  Co.,  Fitzgerald  v.  (41  Nebr.,  467), 22 

Fitzgerald  v.  Fitzgerald,  etc.  Constr.  Co.  (41  Nebr.,  467), 22 

Flaccus  G.  Co.  v.  C.  C.  C.  &  St.  L.  E.  Co.  (14  I.  C.  C.,  333), 31 

Flint  &  W.  Mfg.  Co.  v.  L.  S.  &  M.  S.  E.  Co.  (14  I.  C.  C.,  336), 32 

Forest  City  Frt.  Bu.  v.  A.  A.  E.  Co.  (13  I.  C.  C.,  109), 113 

Forest  City  Frt.  Bu.  v.  A.  A.  E.  Co.  (13  I.  C.  C.,  118), 114 

Forster  Bros.  Co.  v.  D.  S.  S.  &  A.  E.  Co.  (14  I.  C.  C.,  232), 133 

Fowkes,  U.  S.  v.  (D.  C.,  Mo.),  213 


TABLE  OP  CASES  411 

Page 

Fraser  &  Wight,  U.  S.  v.  (D.  C.,  Pa.),  213, 214 

Freeborn  v.  Smith  (2  Wall.,  173),   18 

Fremont  E.  &  M.  V.  E.  Co.,  re  (6  I.  C.  C.,  293), 80 

Frt.  Bu.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (6  I.  C.  C.,  195), 79,  81,  83 

Frye  &  Bruhn  v.  N.  P.  E.  Co.  (13  I.  C.  C.,  501), 133, 134, 146, 150 

G.  &  W.  A.  E.  Co.,  E.  Com.  v.  (5  I.  C.  C.,  324), 84 

G.  C.  Co.  and  C.  &  P.  E.  Co.,  American  Coal  Co.  v.  (46  Md.,  15), 195 

G.  C.  &  S.  F.  E.  Co.  v.  Hefley  (158  U.  S.,  101), 169 

G.  C.  &  S.  F.  E.  Co.  v.  Miami  S.  S.  Co.  (86  Fed.,  407), 66 

G.  H.  &  S.  A.  E.  Co.,  Cattle  Eaisers'  Assn.  v.  (12  I.  C.  C.,  20), 139, 168 

G.  N.  E.  Co.,  Chamber  of  Commerce  v.  (5  I.  C.  C.,  571), 72,  74,  78, 102 

G.  N.  E.  Co.,  Daniels  v.  (6  I.  C.  C.,  458), 117 

G.  N.  E.  Co.,  U.  S.  v.  (145  Fed.,  438),  54 

G.  N.  E.  Co.,  U.  S.  v.  (150  Fed.,  229), 54 

G.  N.  E.  Co.,  U.  S.  v.   (D.  C.,  N.  Y.), 226 

G.  N.  E.  Co.,  U.  S.  v.  (D.  C.,  Pa.),  218 

G.  N.  E.  Co.  et  al.,  IT.  S.  v.  (D.  C.,  Minn.), 224,  225 

Ga.  E.  Co.,  China  &  Japan  T.  Co.  v.  (12  I.  C.  C.,  236), 62 

Ga.  E.  Co.,  Heard  v.  (1  I.  C.  C.,  428), 74,  76 

Ga.  E.  Co.,  Heard  v.  (3  I.  C.  C.,  Ill), 75,  77 

G.  E.  Co.,  Enterprise  Mfg.  Co.  v.  (12  I.  C.  C.,  451), 62 

G.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ga.),  235 

G.  T.  E.  Co.,  B.  of  T.  v.  (2  I.  C.  C.,  315), 71,  76 

G.  T.  E.  Co.,  Lindquist  v.   (121  Fed.,  918),  66 

G.  T.  E.  Co.,  McMorran  v.  (3  I.  C.  C.,  252),  71, 75,  77 

Gage,  Howe  Mach.  Co.  v.  (100  U.  S.,  676),  41 

Gaillard,  S.  C.  v.  (101  U.  S.,  437),  18 

Gallagan,  McPherson  v.   (1  H.  &  H.,  394),   187 

Galli,  Casey  v.   (94  U.  S.,  673),   154 

Gallogly  &  Firestine  v.  C.  H.  &  D.  E.  Co.  (11  I.  C.  C.,  1), 83, 166 

Gardner  &  Clark  v.  S.  E.  Co.  (10  I.  C.  C.,  342), 73, 78,  81 

Gay  Mfg.  Co.,  U.  S.  v.  (D.  C.,  Va.),  219 

Geddes,  U.  S.  v.  (131  Fed.,  452),  54 

General  Electric  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (14  I.  C.  C.,  237), 43 

Gentry  v.  A.  T.  &  S.  F.  E.  Co.  (13  I.  C.  C.,  171), 27, 168 

George  Tileston  M.  Co.  v.  N.  P.  E.  Co.  (8  I.  C.  C.,  346), 81 

Gerke  Brewing  Co.  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  596), 80 

Gibbons  v.  Ogden  (9  Wheat.,  1), 41 

Gilbert,  TJ.  S.  v.  (C.  C.,  Va.), 221 

Gilman  v.  Phila.  (3  Wall.,  724),  41 

Glade  Coal  Co.  v.  B.  &  O.  E.  Co.  (10  I.  C.  C.,  266), 73,  78, 134 

Globe-Wernicke  Co.  v.  B.  &  O.  S.  W.  E.  Co.  (11  I.  C.  C.,  156), 166 

Goodhue  v.  C.  G.  W.  E.  Co.  (11  I.  C.  C.,  683), 79, 81 

Goodyear,  Providence  E.  Co.  v.  (9  Wall.,  788),  154 

Gore  &  Eabinovitz,  U.  S.  v.  (D.  C.,  W.  Va.), 217 

Grain  Shippers'  Assn.  v.  I.  C.  E.  Co.  (8  I.  C.  C.,  158), 130, 167 

Grand  Canyon  L.  &  C.  Co.,  U.  S.  v.   (D.  C.,  Cal.),   226 

Grant,  Eailroad  Co.  v.  (98  TJ.  S.,  398),  18 

Gray,  Davis  v.   (16  Wall.,  218),   254 

Great  Falls  Ice  Co.  v.  D.  C.  (19  D.  C.,  327), 187 

Greene  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473), 71, 77 


412  TABLE  OP  CASES 

Page 

Greenvelt  v.  Burrell  (1  Salk.,  263),  187 

Griffee  v.  B.  &  M.  B.  B.  Co.  in  Nebr.  (2  I.  C.  C.,  301), 74,  76,  84 

Gustin  v.  A.  T.  &  8.  P.  E.  Co.  (8  I.  C.  C.,  277), 78 

Gustin  v.  B.  &  M.  E.  E.  Co.  (8  I.  C.  C.,  481), 81 

Guilford  et  al,  U.  S.  v.  (D.  C.,  N.  Y.),  229 

H.  V.  E.  Co.,  E.  Com.  v.  (12  I.  C.  C.,  398), 16,  58 

Habana,  The  Paquete  (175  U.  S.,  677),  21 

Haddock  v.  D.  L.  &  W.  E.  Co.  (4  I.  C.  C.,  296), 71,  75,  83,  84, 149 

Haines  v.  C.  E.  I.  &  P.  E.  Co.  (13  I.  C.  C.,  214), 108 

Hale  v.  Henkel  (201  U.  8.,  43), 163, 164 

Hale  v.  Tyler  (104  Fed.,  761),  246 

Hamburg-Am.  P.  Co.,  Cosmopolitan  S.  Co.  v.  (13  I.  C.  C.,  266), 17, 

18, 19,  25, 36, 39,  43,  68, 11, 119, 123 

Hamilton  &  Brown  v.  C.  E.  &  C.  E.  Co.  (4  I.  C.  C.,  686), 75,  77,  80,  82,  84, 121 

Hanley,  U.  S.  v.  (71  Fed.,  672),   65, 172, 210 

Hanley  &  Beinhart,  U.  S.  v.  (D.  C.,  HL),  214 

Harper,  U.  S.  v.  (P.  Ct.,  D.  C.), 10 

Hardin,  Leisy  v.  (135  U.  S.,  100),  41 

Hardware  Co.,  Bond  v.  (15  App.  D.  C.,  72), 187 

Harrahan,  "U.  S.  v.  (D.  C.,  Tenn.), 215 

Harrell  v.  M.  K.  &  T.  E.  Co.  (12  I.  C.  C.,  28), 139, 186 

Harriman  v.  U.  8.  (S.  C.,  Oct.,  1908),  vi,  24, 179 

Harris,  Barber  v.    (6  Mackey,  586),   187 

Harris  v.  Duval,  rec.   (3  I.  C.  C.,  128),  83 

Harvard  Co.  v.  P.  Co.  (4  I.  C.  C.,  212),  71,  77 

Harvey  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  153), 75,  84 

Harwell  v.  C.  &  W.  E.  Co.  (1  I.  C.  C.,  236), 74,  76,  79, 117 

Hastings  M.  Co.  v.  C.  M.  &  St.  P.  E.  Co.  (11  I.  C.  C.,  675), 73, 79,  81 

Hartley,  U.  S.  v.  (D.  C.,  Mo.),  225 

Heard  v.  Ga.  E.  Co.  (1  L  C.  C.,  428),  74,  76 

Heard  v.  Ga.  E.  Co.  (3  I.  C.  C.,  Ill), 75,  77 

Hebard,  Belding  v.  (103  Fed.,  532),   257 

Heck  v.  E.  T.  V.  &  G.  E.  Co.  (1  I.  C.  C.,  495), 36,  43,  73,  76,  83 

Hecker-Jones-Jewell  M.  Co.  v.  B.  &  O.  E.  Co.  (14  I.  C.  C.,  356), 206 

Hefley,  G.  C.  &  S.  F.  E.  Co.  v.  (158  U.  S.,  101), 169 

Heine  v.   Com.    (19  Wall.,   655),    203 

Helston,  Eeg.  v.  (Lucas'  Eep.,  202), 181 

Helwig  v.  U.  S.  (188  U.  S.,  605),  202 

Hendley  v.  Clark  (8  App.  D.  C.,  165),  187 

Henkel,  Hale  v.   (201  U.  S.,  43),  163, 164 

Hewins  v.  N.  Y.  N.  H.  &  H.  E.  E.  Co.  (10  I.  C.  C.,  221), 78 

Hezel  M.  Co.  v.  St.  L.  A.  &  T.  H.  E.  Co.  (5  I.  C.  C.,  57), 75 

Hill  v.  N.  C.  &  St.  L.  E.  Co.  (6  I.  C.  C.,  343), 80 

Hilton  L.  Co.  v.  W.  &  W.  E.  Co.  (9  I.  C.  C.,  17), 23,  73,  76,  78, 81 

Hinds  v.  Keith  (57  Fed.,  10),   257 

Hitchcock,  Counselman  v.    (142  U.  S.,  547),    161,162 

Hoff,  Capital  Traction  Co.  v.   (174  U.  S.,  1),  187 

Hoiles  v.  U.  S.   (3  MacA.,  370),   187 

Holbrook  v.  St.  P.  M.  &  M.  E,  Co.  (1  I.  C.  C.,  102), 151 

Holdzkom  v.  M.  C.  E.  Co.  (9  I.  C.  C.,  42),  78,  81, 151 

Holmes  &  Co.  v.  S.  E.  Co.  (8  I.  C.  C.,  561), 130,  150 

Holt  v.  Ind.  Mfg.  Co.  (176  U.  S.,  69), 21 

Hope  C.  O.  Co.  v.  T.  &  P.  E.  Co.  (10  I.  C.  C.,  696), 82 


TABLE  OF  CASES  413 

Page 

Houston,  Brown  v.  (114  IT.  S.,  622),  41 

Hovey,  McDonald  v.   (110  17.  S.,  619),   66 

Howe  Mach.  Co.  v.  Gage  (100  U.  S.,  676),  41 

Howell  v.  N.  Y.  L.  E.  &  W.  E.  Co.  (2  I.  C.  C.,  272), 42,  71,  76, 151, 166 

Howell,  U.  S.  v.  (D.  C.,  Mo.),  213 

Howell,  U.  S.  v.  (56  Fed.,  21),  210 

Hudson,  U.  S.  v.   (7  Cranch,  32),  194 

Huffman  v.  Cauble   (86  Ind.,  591),  165 

Hurlburt  v.  L.  S.  &  M.  S.  E.  Co.  (2  I.  C.  C.,  122),  . .  .71,  76, 118, 122, 145, 148, 157 

Hurlburt  v.  P.  E.  Co.  (2  I.  C.  C.,  130),  71,  76, 145 

Huntington,  IT.  S.  v.   (D.  C.,  Cal.),   214 

Hussey  v.  C.  E.  I.  &  P.  E.  Co.  (13  I.  C.  C.,  366), 18 

Hussey  v.  C.  E.  I.  &  P.  E.  Co.  (14  I.  C.  C.,  215), 184 

Hyde  v.  Shine  (199  U.  S.,  62), 233 

I.  C.  E.  Co.,  Am.  Warehousemen's  Assn.  v.  (7  I.  C.  C.,  556), 72,  76, 113 

I.  C.  E.  Co.,  C.  &  M.  E.  E.  Co.  v.  (13  I.  C.  C.,  20), 168 

I.  C.  E.  Co.,  Central  Y.  P.  Assn.  v.  (10  I.  C.  C.,  505),  61,  73,  79, 176 

I.  C.  E.  Co.,  Durham  v.   (12  I.  C.  C.,  37),  79, 81, 139 

I.  C.  E.  Co.,  Edmunds  v.  (80  Fed.,  78), 22, 194,  233,  253 

I.  C.  E.  Co.,  Elvey  v.  (3  I.  C.  C.,  652),  71,  75,  82 

I.  C.  E.  Co.,  Grain  S.  Assn.  v.  (8  I.  C.  C.,  158), 130,  167 

L  C.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  La.), 238 

I.  C.  E.  Co.,  Lippman  &  Co.  v.  (2  I.  C.  C.,  384),  74 

I.  C.  E.  Co.,  N.  O.  Cotton  Ex.  (3  I.  C.  C.,  534),  71,  75,  77 

I.  C.  E.  Co.,  Thompson  L.  Co.  v.  (13  I.  C.  C.,  657), 133 

I.  C.  E.  Co.,  U.  S.  v.  (D.  C.,  Ky.,  Nov.  1,  1907),  55 

L  C.  E.  Co.,  U.  S.  v.  (  D.  C.,  Tenn.), 215 

I.  C.  E.  Co.,  II.  S.  v.  (C.  C.,  La.),  217 

I.  C.  E.  Co.  v.  I.  C.  C.  (206  U.  S.,  441), 257 

I.  C.  E.  Co.  v.  I.  C.  C.  (C.  C.,  HI.),  206 

I.  D.  &  W.  E.  Co.,  Suffern,  Hunt  &  Co.  v.  (7  I.  C.  C.,  225), 152 

I.  H.  E.  Co.,  U.  S.  v.  (D.  C.,  HL,  Nov.  20,  1906), 54 

L  E.  Co.,  Long  v.   (14  I.  C.  C.,  116),  27 

I.  T.  E.  Co.,  II.  S.  v.  (D.  C.,  111.), 218 

I.  U.  E.  Co.,  Interstate  Stock  Yards  Co.  v.  (99  Fed.,  472), 22 

I.  C.  C.,  B.  &  O.  E.  Co.  v.  (C.  C.,  Md.),  204,  206 

I.  C.  C.,  B.  &  O.  E.  Co.  v.  (C.  C.,  Md.,  July,  1908), 362 

I.  C.  C.,  C.  &  A.  E.  Co.  v.  (C.  C.,  111.),  58,  206 

I.  C.  C.,  C.  H.  &  D.  E.  Co.  v.  (2006  U.  S.,  142),  257 

I.  C.  C.,  C.  N.  O.  &  T.  P.  E.  Co.  v.  (162  U.  S.,  184), 15, 

16,  33, 36,  37, 40,  45,  66, 119, 166,  257,  263,  266 

I.  C.  C.,  D.  G.  H.  &  M.  E.  Co.  v.  (74  Fed.,  803), 66, 171, 173,  234 

I.  C.  C.  &  Eahway  V.  E.  Co.,  D.  L.  &  W.  E.  Co.  v.  (C.  C.,  N.  Y.), 207,  248 

I.  C.  C.,  E.  T.  V.  &  G.  E.  Co.  v.  (181  U.  S.,  1), 185 

I.  C.  C.  et  al.,  D.  L.  &  W.  E.  Co.  v.  (155  Fed.,  512), 207,  248,  343,  371,  373 

I.  C.  C.,  Harriman  v.  (No.  315  S.  C.,  Oct.  T.,  1908), 179 

I.  C.  C.,  I.  C.  E.  Co.  v.  (C.  C.,  111.), 206, 

L  C.  C.,  I.  C.  E.  Co.  v.  (206  U.  S.,  441), 257 

I.  C.  C.,  N.  P.  E.  Co.  v.  (C.  C.  Minn.  Eq.  884,  Oct.  20,  1908), 348 

I.  C.  C.,  N.  Y.  C.  &  H.  E.  E.  Co.  v.  (C.  C.,  N.  Y.),  206,  207 

I.  C.  C.,  S.  P.  Co.  v.  (C.  C.,  Cal), 207 


414  TABLE  OP  CASES 

Page 

I.  C.  C.,  8.  P.  Co.  v.  (C.  C.,  Tex.),  206 

I.  C.  C.,  Sitekney  v.  (C.  C.,  Minn.  May,  1908),  347,  372 

I.  C.  C.,  Stickney  v.  (C.  C.,  111.),  253 

L  C.  C.,  Sitekney  et  al.  .v.  (C.  C.,  Minn.),  206 

I  C.  C.,  T.  &  P.  E.  Co.  v.  (162  U.  S.  197), 16, 

34,  37, 38, 39,  64,  65,  66, 119, 165, 171, 172,173,  247,  266 

I.  C.  C.  v.  A.  M.  E.  Co.  (168  U.  S.,  144),  66, 173 

I.  C.  C.  v.  A.  M.  E.  Co.  (C.  C.,  Ala.),  236 

L  C.  C.  v.  A.  T.  &  S.  F.  E.  Co.  (50  Fed.,  295), 171,  262 

I.  C.  C.  v.  A.  T.  &  S.  F.  E.  Co.  (149  U.  S.,  264), 262,  265 

L  C.  C.  v.  A.  T.  &  S.  F.  E.  Co.  (C.  C.,  Cal), 235 

L  C.  C.  v.  B.  &  O.  E.  Co.  (145  U.  S.,  37), 173 

I.  C.  C.  v.  B.  &  O.  E.  Co.  (145  U.  S.,  263), 66, 172, 173, 194,  235 

I.  C.  C.  v.  B.  &  O.  E.  Co.  (43  Fed.,  37),  66 

L  C.  C.  v.  Baird  (C.  C.,  N.  Y.), 261 

L  C.  C.  v.  Baird  (194  U.  S.,  25), 240 

I.  C.  C.  v.  Bond  (194  U.  S.,  25),  163 

I.  C.  C.  v.  Brimson  (154  U.  S.,  447), 50, 162,  240,  241,  259 

L  C.  C.  v.  C.  B.  &  Q.  E.  Co.  (C.  C.,  HI.),  235 

L  C.  C.  v.  C.  B.  &  Q.  E.  Co.  (94  Fed.,  272), 262 

I.  C.  C.  v.  C.  G.  W.  E.  Co.  (C.  C.,  I1L), 238 

L  C.  C.  v.  C.  H.  &  D.  E.  Co.  (C.  C.,  Ohio), 238 

L  C.  C.  v.  C.  M.  &  St.  P.  E.  Co.  (C.  C.,  Minn), 236 

I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (56  Fed.,  925), 171,  234,  262,  263 

I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (C.  C.,  Ga.), 235,  236 

I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (C.  C.,  Ohio), 236 

I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (167  U.  S.,  479), vi,  vii,  15, 16, 17, 45,  47 

L  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (76  Fed.,  183), 16 

I.  C.  C.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (64  Fed.,  981),  16,  253,  262,  263 

I.  C.  C.  v.  C.  P.  &  V.  E.  Co.  (C.  C.,  N.  C.), 237 

I.  C.  C.  v.  Clyde  S.  S.  Co.  (181  U.  S.,  29), 185 

I.  C.  C.  v.  Clyde  S.  S.  Co.  (C.  C.,  Ga.), 236 

L  C.  C.  v.  D.  G.  H.  &  M.  E.  Co.  (57  Fed.,  1005), 24,  50, 113 

I.  C.  C.  v.  D.  G.  H.  &  M.  E.  Co.  (167  U.  S.,  642), 37 

L  C.  C.  v.  D.  G.  H.  &  M.  E.  Co.  (C.  C.,  Mich.), 235 

I.  C.  C.  v.  D.  L.  &  W.  E.  Co.  (64  Fed.,  723), 235 

I.  C.  C.  v.  E.  T.  V.  &  G.  E.  Co.  (85  Fed.,  107), 65, 171,  262 

I.  C.  C.  v.  E.  T.  V.  &  G.  E.  Co.  (C.  C.,  Tenn.), 236 

I.  C.  C.  v.  G.  E.  Co.  (C.  C.,  Ga.),  235 

I.  C.  C.  v.  I.  C.  E.  Co.  (C.  C.,  La.), 238 

L  C.  C.  v.  L.  &  N.  E.  Co.  (73  Fed.,  409), 16,  66, 141, 173,  262 

I.  C.  C.  v.  L.  &  N.  E.  Co.  (C.  C.,  Ala.),  237 

I.  C.  C.  v.  L.  &  N.  E.  Co.  (C.  C.,  Ga.), 237 

I.  C.  C.  v.  L.  &  N.  E.  Co.  (C.  C.,  Ohio), 236 

I.  C.  C.  v.  L.  &  N.  E.  Co.  (C.  C.,  Tenn.),  236 

I.  C.  C.  v.  L.  S.  &  M.  S.  E.  Co.  (202  U.  S.,  613;  134  Fed.,  942), 246,  263 

I.  C.  C.  v.  L.  S.  &  M.  S.  E.  Co.  (C.  C.,  Ohio), 238 

I.  C.  C.  v.  L.  S.  &  M.  S.  E.  Co.  (134  Fed.,  942), 339 

I.  C.  C.  v.  L.  V.  E.  Co.  (49  Fed.,  177),  253,  262 

I.  C.  C.  v.  L.  V.  B,  Co.  (74  Fed.,  784),  15 

I.  C.  C.  v.  L.  V.  E.  Co.  (C.  C.,  Pa.),  235 

I.  C.  C.  v.  M.  &  O.  E.  Co.  (C.  C.,  Miss.  ), 238 


TABLE  OF  CASES  415 

Page 

I.  C.  C.  v.  M.  P.  E.  Co.  (C.  C.,  N.  Dak.), 236 

I.  C.  C.  v.  N.  C.  &  St.  L.  B.  Co.  (C.  C.,  Ma.), 237 

I.  C.  C.  v.  N.  E.  E.  Co.  (74  Fed.,  70), 15 

I.  C.  C.  v.  N.  E.  E.  Co.  (C.  C.,  S.  C.),  237 

I.  C.  C.  v.  N.  Y.  P.  &  N.  E.  E.  Co.  (C.  C.,  Va.), 236 

I.  C.  C.  v.  Ocean  S.  S.  Co.  (C.  C.,  Ga.),  236 

I.  C.  C.  v.  P.  &  E.  E.  Co.  (123  Fed.,  970),  259 

I.  C.  C.  v.  S.  P.  Co.  (74  Fed.,  42),   247 

I.  C.  C.  v.  S.  P.  Co.    (137  Fed.,  606),    240 

I.  C.  C.  v.  S.  P.  Co.  (C.  C.,  Cal.),  237,  238 

I.  C.  C.  v.  S.  P.  Co.  (C.  C.,  Colo.),  237 

I.  C.  C.  v.  S.  E.  Co.  (117  Fed.,  741),  262 

L  C.  C.  v.  S.  E.  Co.  (C.  C.,  Ala.),  237 

I.  C.  C.  v.  S.  E.  Co.  (C.  C.,  Va.),  237 

I.  C.  C.  v.  T.  &  P.  E.  Co.  (57  Fed.,  948), 173,  247 

I.  C.  C.  v.  T.  &  P.  E.  Co.  (C.  C.,  N.  Y.), 236 

I.  C.  C.  v.  W.  &  A.  E.  Co.  (C.  C.,  Ga.),  236 

I.  C.  C.  v.  W.  N.  Y.  &  P.  E.  Co.  (C.  C.,  Pa.), 237 

I.  C.  C.,  Wight  v.  (167  U.  S.,  512),  173 

Illinois  Glass  Company  et  al.,  U.  S.  v.  (D.  C.,  111.), 221 

Imperial  Coal  Co.  v.  P.  &  L.  E.  B.  Co.  (2  I.  C.  C.,  618), 77,  79 

Indpt.  Eef.  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (5  I.  C.  C.,  415), 72,  75,  78,  81 

Indpt.  Eef.  Assn.  v.  P.  E.  Co.  (5  I.  C.  C.,  415), 72,  75,  78, 81 

Indpt.  Eef.  Assn.  v.  P.  E.  Co.  (6  I.  C.  C.,  449),  84 

Indpt.  Eef.  Assn.  v.  W.  N.  Y.  &  P.  E.  Co.  (6  I.  C.  C.,  378), 35, 

72,  83, 114, 118, 132, 136 

Indian  Supplies,  re  (1  I.  C.  C.,  15),  84 

Indiana  Mfg.  Co.,  Holt  v.   (176  U.  S.,  69),  21 

Insurance  Co.  v.  Eitchie  (5  Wall.,  541),   18 

International  B.  Co.,  C.  S.  E.  Co.  v.  (7  Fed.,  653), 195 

Interstate  Stock  Yards  Co.  v.  I.  U.  E.  Co.  (99  Fed.,  472), 22 

Iowa,  Ehodes  v.   (170  II.  S.,  412),   41 

Israel,  Allen  v.   (Balto.  Co.  Ct.),    187 

Jackson  v.  St.  L.  A.  &  T.  E.  Co.  (1  I.  C.  C.,  184), 140 

Jacobson,  W.  M.  &  P.  E.  Co.  v.  (179  U.  S.,  287), 22 

James  &  Abbott  v.  C.  P.  E.  Co.  (5  I.  C.  C.,  612),  72,  78,  83, 113 

James  &  Abbott  v.  E.  T.  V.  &  G.  E.  Co.  (3  I.  C.  C.,  225), 71,  77,  80 

James,  etc.,  B.  Co.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (4  I.  C.  C.,  744), 39,  74,  77, 80 

James,  U.  S.  v.  (60  Fed.,  257),  162 

Jenkins,  U.  S.  v.  (D.  C.,  111.),  214 

Jerome  Hill  Cotton  Co.  v.  M.  K.  &  T.  E.  Co.  (6  I.  C.  C.,  601), 80 

Jewett  Bros.  &  Jewett  v.  C.  M.  &  St.  P.  E.  Co.  (156  Fed.,  160), 209 

Joint  Traffic  Assn.,  U.  S.  v.  (171  U.  S.,  505),  196 

Joint  Tariffs,  re  (2  I.  C.  C.,  656),  82 

Joint  Tariffs  and  Schedules,  re  (1  I.  C.  C.,  225),  81 

Joint  Water  and  Bail  Lines,  re  (2  I.  C.  C.,  645),  74 

Johnson  v.  S.  P.  Co.  (196  U.  S.,  1),  54 

Johnson  v.  S.  P.  Co.  (117  Fed.,  462),  54 

Johnson,  T.  &  P.  E.  Co.  v.  (151  U.  S.,  81),  254 

Johnson,  U.  S.  v.   (D.  C.,  111.),   212 

Johnston  v.  C.  St.  P.  M.  &  O.  E.  Co.  (9  I.  C.  C.,  221),  73,  78,  82 


416  TABLE  OP  CASES 

Page 

Johnston-Larimer  D.  G.  Co.  v.  A.  T.  &  8.  F.  E.  Co.  (6  I.  C.  C.,  568),  ...  80 

Johnston-Larimer  D.  G.  Co.  v.  A.  T.  &  8.  F.  E.  Co.  (12  I.  C.  C.,  48),  ...  139 

Johnston-Larimer  D.  G.  Co.  v.  W.  E.  Co.  (12  I.  C.  C.,  48),  .  .22, 112, 120, 139, 186 

Johnston,  U.  8.  v.   (C.  C.,  Va.),  221 

Judd  &  Watkins,  TJ.  8.  v.  (D.  C.,  Mo.),  214 

Jumel,  La.  v.  (107  U.  S.,  762),  203 

Junod  v.  C.  &  N.  W.  E.  Co.  (47  Fed.,  290), 171 

K.  C.  E.  Co.,  Keith  v.  (1  I.  C.  C.,  189), 46,  76, 185 

K.  C.  8.  B.  Co.,  Leonard  v.  (13  L  C.  C.,  573), 35, 168 

Ky.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (937  Fed.,  272), 262 

Ky.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (37  Fed.,  567), 16,  66,  97,  234,  263 

Ky.  &  I.  B.  Co.  v.  L.  &  N.  E.  Co.  (2  I.  C.  C.,  162), 43,  79,  82, 121, 169 

Kauffman  M.  Co.  v.  M.  P.  E.  Co.  (4  I.  C.  C.,  417), 75, 77, 154 

Kehlor,  U.  8.  v.  (D.  C.,  HI.), 213 

Kelly  v.  Moore  (22  App.  D.  C.,  1),  187 

Kemble  v.  B.  &  A.  E.  Co.  (8  I.  C.  C.,  110), 34,  39,  80,  82 

Kemble  v.  L.  8.  &  M.  8.  E.  Co.  (5  I.  C.  C.,  166),  75,77,84,153 

Keith,  Hinds  v.  (57  Fed.,  10), 257 

Keith  v.  K.  C.  E.  Co.  (1  I.  C.  C.,  189),  46,  76, 185 

Kendall  v.  U.  S.   (12  Pet.,  524),   203 

Keyser,  U.  8.  v.  (D.  C.,  Tenn),  213 

Kimball,  Mobile  v.  (102  TJ.  8.,  691),  139, 186 

Kimberly  v.  Arms  (129  U.  8.,  512),  29 

Kindel  v.  A.  T.  &  8.  F.  E.  Co.  (8  I.  C.  C.,  608), 78,  81 

Kindel  v.  A.  T.  &  8.  F.  E.  Co.  (9  I.  C.  C.,  606), 81 

King  v.  N.  Y.  N.  H.  &  H.  E.  Co.  (4  L  C.  C.,  251), 71,  79,  80,  84 

Kirby,  Pentlarge  v.  (19  Fed.,  501),  202 

Kiser  Co.  v.  C.  of  Ga.  E.  (158  Fed.,  193),  208 

Knapp,  C.  &  O.  Canal  Co.  v.  (9  Pet.,  541),  110 

Knapp  v.  L.  8.  &  M.  8.  E.  Co.  (197  TJ.  8.,  540), 203,  205 

Knight,  U.  8.  v.  (156  U.  8.,  13),  41 

Knight,  TJ.  8.  v.  (D.  C.,  HL),  213 

Knight,  TJ.  8.  v.  (D.  C.,  Mo.),  213 

Koenigsberger  v.  Eichmond  Silver  Mine  Co.  (158  U.  8.,  48), 18 

Kohler,  ex  parte  (30  Fed.,  869),  36 

Kresky,  U.  8.  v.   (D.  C.,  Mo.),   229 

Kresky  &  McGowan,  TJ.  8.  v.  (D.  C.,  Mo.), 229 

L.  &  N.  E.  Co.,  Brewer  &  Hanleiter  v.  (7  I.  C.  C.,  224), 78, 180 

L.  &  N.  E.  Co.,  Galloway  v.  (7  I.  C.  C.,  431),  72,  78,  80 

L.  &  N.  E.  Co.,  Capehart  v.  (4  I.  C.  C.,  265), 18,  31,  74,  75,  77,  79,  84 

L.  &  N.  E.  Co.,  Central  Stock  Yards  Co.  v.  (47  Fed.,  771), 22 

L.  &  N.  E.  Co.,  Coe  v.  (3  Fed.,  755), 195 

L.  &  N.  E.  Co.,  Com.  v.  (E.  Com.,  Ky.,  1906),  386 

L.  &  N.  E.  Co.,  Com.  Assn.  v.  (12  I.  C.  C.,  372), 81 

L.  &  N.  E.  Co.,  Copp  v.  (43  La.  Ann.,  511),  22 

L.  &  N.  E.  Co.,  Copp.  v.  (50  Fed.,  164),  94,  238 

L.  &  N.  E.  Co.,  Cordele  Mach.  Shop  v.  (6  I.  C.  C.,  361), 80 

L.  &  N.  E.  Co.,  Farmers'  Warehouse  Co.  v.  (12  I.  C.  C.,  457), 22 

L.  &  N.  E.  Co.,  Gerke  Brewing  Co.  v.  (5  I.  C.  C.,  596), 80 

L.  &  N.  E.  Co.,  Harvey  v.  (5  I.  C.  C.,  153),  75,  84 


TABLE  OF  CASES  417 

• .  ,  Page 

L.  &  N.  E.  Co.,  I.  C.  C.  v.  (73  Fed.,  409),  16,  66, 141, 173,  262 

L.  &  N.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ala.),  237 

L.  &  N.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ga.), 237 

L.  &  N.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ohio), 236 

L.  &  N.  E.  Co.,  L  C.  C.  v.  (C.  C.,  Term.), 236 

L.  &  N.  E.  Co.,  Ky.  &  I.  B.  Co.  v.  (37  Fed.,  272),  262 

L.  &  N.  E.  Co.,  Ky.  &  I.  B.  Co.  v.  (37  Fed.,  567), 16, 66, 97,  234,  262,  263 

L.  &  N.  E.  Co.,  Ky.  &  I.  B.  Co.  v.  (2  I.  C.  C.,  162), 43,79,82,121,169 

L.  &  N.  E.  Co.,  Mayor,  etc.,  of  T.  v.  (9  I.  C.  C.,  160), 73,  78,  81 

L.  &  N.  E.  Co.,  Marten  v.  (9  I.  C.  C.,  581), 81 

L.  &  N.  E.  Co.,  Nicola,  Stone  &  Myers  Co.  v.  (14  I.  C.  C.,  199),  .  .97, 110, 130, 132 

L.  &  N.  E.  Co.,  N.  O.  Cotton  Ex.  v.  (4  I.  C.  C.,  694),  134 

L.  &  N.  E.  Co.,  Phillips,  Bailey  &  Co.  v.  (8  I.  C.  C.,  93), 73, 78, 180 

L.  &  E.  Co.,  re  (1  I.  C.  C.,  31), 79 

L.  &  N.  B.  Co.,  E.  Com.  v.  (10  I.  C.  C.,  173), 20, 43 

L.  &  N.  E.  Co.,  E.  Com.  v.  (5  I.  C.  C.,  324), 72,  74, 75,  78,  80,  83,  84 

L.  &  N.  E.  Co.,  E.  Com.  v.  (10  I.  C.  C.,  173),  79,  82 

L.  &  N.  E.  Co.,  Eice  v.  (1  I.  C.  C.,  503),  43,74,76,81,121 

L.  &  N.  E.  Co.,  Eice  v.  (3  I.  C.  C.,  186), 83 

L.  &  N.  E.  Co.,  Eice  v.  (5  I.  C.  C.,  193), 72,  74,  75,  80 

L.  &  N.  E.  Co.,  Savannah  Frt.  Bu.  v.  (8  I.  C.  C.,  377), 73,  78, 151 

L.  &  N.  E.  Co.,  Shinkle  v.  (62  Fed.,  690),  253 

L.  &  N.  E.  Co.,  Spillers  &  Co.  v.  (8  I.  C.  C.,  364), 82 

L.  &  N.  E.  Co.,  U.  S.  v.  (D.  C.,  Ky.), 215 

L.  &  N.  E.  Co.  v.  Behmer  (175  U.  S.,  648),  171, 185,  257 

La.  S.  &  B.  C.  E.  Co.  v.  C.  &  N.  W.  E.  Co.  (13  I.  C.  C.,  610), 43 

L.  C.  E.  Co.,  Traer,  rec.,  v.  (13  I.  C.  C.,  451), 128 

L.  E.  &  W.  E.  Co.,  Southern  P.  &  G.  Co.  v.  (6  I.  C.  C.,  284), 46 

L.  N.  A.  &  C.  E.  Co.,  Allen  v.  (1  I.  C.  C.,  199), 79, 117 

L.  N.  A.  &  C.  E.  Co.,  P.  Co.  v.  (3  I.  C.  C.,  223), 42 

L.  N.  O.  &  T.  E.  Co.,  N.  O.  Cotton  Ex.  v.  (4  I.  C.  C.,  694), 82,  84, 140 

L.  E.  &  M.  E.  Co.  v.  St.  L.  I.  M.  &  S.  E.  Co.  (63  Fed.,  775), 66, 170 

L.  E.  &  M.  E.  Co.  v.  E.  T.  V.  &  G.  E.  Co.  (3  I.  C.  C.,  1), 68,  79 

L.  E.  &  M.  E.  Co.  v.  E.  T.  V.  &  G.  E.  Co.  (47  Fed.,  771), 194 

L.  S.  &  M.  S.  E.  Co.,  Acme  C.  P.  Co.  v.  (I.  C.  C.  Docket,  1434), 333 

L.  S.  &  M.  S.  E.  Co.,  Acme  C.  P.  Co.  v.  (I.  C.  C.  Docket,  1431), 114 

L.  S.  &  M.  S.  E.  Co.,  Chamber  of  Commerce  v.  (II.  C.  C.,  436), 74,  76, 153 

L.  S.  &  M.  S.  E.  Co.,  Flint  &  W.  Mfg.  Co.  v.  (14  I.  C.  C.,  336), 32 

L.  S.  &  M.  S.  E.  Co.,  Hurlburt  v.  (2  I.  C.  C.,  122),  .  .71, 76, 118, 122, 145, 148, 157 

L.  S.  &  M.  S.  E.  Co.,  I.  C.  C.  v.  (134  Fed.,  942), 263,  339 

L.  S.  &  M.  S.  E.  Co.,  I.  C.  C.  v.  (202  U.  S.,  613), 246 

L.  S.  &  M.  S.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ohio),  238 

L.  S.  &  M.  S.  E.  Co.,  Kemble  v.  (5  I.  C.  C.,  116), 75,  77,  84, 153 

L.  S.  &  M.  S,  E.  Co.,  Knapp  v.  (197  U.  S.,  540),  48,  203,  205 

L.  S.  &  M.  S.  E.  Co.,  Natl.  Hay  Assn.  v.  (9  I.  C.  C.,  264), 63, 

73,  78, 109, 126, 177,  246 

L.  S.  &  M.  S.  E.  Co.,  Schofield  v.  (2  L  C.  C.,  90), 74,  76 

L.  S.  &  M.  S.  E.  Co.,  Toledo  Produce  Ex.  v.  (5  I.  C.  C.,  166), 16, 

75,  77,  84, 144, 153 

L.  S.  &  M.  S.  E.  Co.,  Ulric  &  Williams  v.  (9  I.  C.  C.,  495), 73,  78,  81 

L.  S.  &  M.  S.  E.  Co.,  U.  S.  v.  (D.  C.,  Ohio),  205,  212 

L.  V.  E.  Co.,  Coxe  Bros.  &  Co.  v.  (4  I.  C.  C.,  535), 72,  75,  77, 79,  83 

L.  V.  E.  Co.,  I.  C.  C.  v.  (74  Fed.,  784),  15 


418  TABLE  OP  CASES 

Page 

L.  V.  R.  Co.,  I.  C.  C.  v.  (49  Fed.,  177), 253,  2«2 

L.  V.  B.  Co.,  I.  C.  C.  v.  (C.  C.,  Pa.), 235 

L.  V.  B.  Co.  v.  Bainey  (99  Fed.,  596;  112  Fed.,  487), 234 

L.  V.  B.  Co.,  U.  8.  v.  (D.  C.,  Pa.,  Mar.  17,  1908), 55 

La  Crosse  M.  &  J.  Union  v.  C.  M.  &  St.  P.  B.  Co.  (1  I.  C.  C.,  629), 102, 106 

Lake,  U.  S.  v.  (D.  C.,  Pa.), 218 

Larrison  v.  C.  &  G.  T.  B.  Co.  (1  I.  C.  C.,  147), 74,  84 

La  Salle  &  B.  C.  B.  Co.  v.  C.  &  N.  W.  B.  Co.  (13  I.  C.  C.,  610), 31 

Leggett  &  Co.  v.  N.  Y.  C.  &  H.  B.  B.  Co.  (3  I.  C.  C.,  473), 71,  75,  77 

Lehmann-Higginson  G.  Co.  v.  A.  T.  &  S.  F.  B.  Co.  (10  I.  C.  C.,  460),  .  .       79,  81 

Lehmann,  Higginson  &  Co.  v.  S.  P.  Co.  (4  I.  C.  C.,  1), 71,  75,  77,  80,  82 

Lehmann,  Higginson  &  Co.  v.  T.  &  P.  E.  Co.  (5  I.  C.  C.,  44), 72,  75,  82 

Leisy,  Shea  v.  (85  Fed.,  245),  257 

Leisy  v.  Hardin   (135  TJ.  S.,  100),   41 

Lennon,  re   (166  II.  S.,  548),   21 

Leonard  v.  C.  &  A.  B.  Co.  (3  I.  C.  C.,  241), 44, 71 

Leonard  v.  K.  C.  S.  B.  (13  I.  C.  C.,  573),  35, 168 

Leonard  v.  IT.  P.  E.  Co.  (1  I.  C.  C.,  185),  140, 151 

Libby,  D.  C.  v.  (9  App.  D.  C.,  321),  187 

Lincoln  B.  of  T.  v.  M.  P.  B.  Co.  (2  I.  C.  C.,  155), 76,  79 

Lincoln  B.  of  T.  v.  B.  &  M.  E.  Co.  in  Nebr.  (2  I.  C.  C.,  147), 71,  76 

Lincoln  Creamery  v.  U.  P.  B.  Co.  (5  I.  C.  C.,  156), 72,  77 

Lindquist  v.  G.  T.  E.  Co.  (121  Fed.,  918),  66 

Linthicum,  Eemington  v.   (14  Pet.,  91),   257 

Lippman  &  Co.  v.  I.  C.  E.  Co.  (2  I.  C.  C.,  284), 74 

Listman  M.  Co.  v.  C.  M.  &  St.  P.  E.  Co.  (8  I.  C.  C.,  47), 76 

Lockridge,  McNulta  v.   (141  U.  S.,  327),   254 

Logan  Coal  Co.  v.  P.  E.  (154  Fed.,  497),  58 

Logan  v.  C.  &  N.  W.  E.  Co.  (2  I.  C.  C.,  604), 71,  77, 79 

Long  v.  I.  E.  Co.   (14  I.  C.  C.,  116),  27 

Lonergan  v.  Miss.  Co.   (5  Fed.,  778),   257 

Loud  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  529), 32,  46,  72, 153 

Louisiana  v.  Jumel   (107  U.  S.,  762),    203 

Loup  Creek  Co.  v.  V.  E.  Co.  (12  I.  C.  C.,  471), 168 

Lowry  v.  C.  B.  &  Q.  E.  Co.  (46  Fed.,  83),  194 

Lumberg,  Albany  Ins.  Co.  v.   (121  U.  S.,  451),   246 

Lykes  S.  S.  Line  v.  Com.  Union  (13  I.  C.  C.,  310), 20,  39,  66,  68 

Lynchburg  B.  of  T.  v.  O.  D.  S.  S.  Co.  (6  I.  C.  C.,  632), 80 

M.  &  C.  E.  Co.,  Behlmer  v.  (6  I.  C.  C.,  257), 80, 187 

M.  &  L.  B.  Co.,  Sou.  Exp.  Co.  v.  (8  Fed.,  799), 195 

M.  &  N.  E.  Co.,  Eice  v.  (1  Black,  358),  191 

M.  &  O.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Miss.),  238 

M.  &  O.  E.  Co.,  Eea  v.  (7  I.  C.  C.,  43),  24, 43 

M.  &  St.  L.  E.  Co.  and  Kenny,  U.  S.  v.  (D.  C.,  Minn.), 225 

M.  &  St.  L.  E.  Co.,  M.  &  J.  Union  v.  (1  I.  C.  C.,  227), 140 

M.  &  St.  L.  E.  Co.,  M.  &  J.  Union  v.  (4  I.  C.  C.,  79), 71,  75,  77 

M.  C.  E.  Co.,  Cist  v.  (10  L  C.  C.,  217), 19, 39,  73 

M.  C.  E.  Co.,  Holdzkom  v.  (9  I.  C.  C.,  42),  78,  81, 151 

M.  C.  E.  Co.,  Squire  &  Co.  v.  (4  I.  C.  C.,  611),   77 

M.  C.  E.  Co.,  U.  S.  v.  (D.  C.,  HI.), 212 

M.  C.  E.  Co.  v.  C.  &  G.  T.  B.  Co.  (1  I.  C.  C.,  147),  84 


TABLE  OF  CASES  419 

Page 

M.  C.  E.  Co.,  White  v.  (3  I.  C.  C.,  281),  22,  73,  83, 103 

M.  K.  &  T.  E.  Co.,  Blackwell  M.  &  E.  Co.  v.  (12  I.  C.  C.,  24), 30, 139 

M.  K.  &  T.  E.  Co.,  Cattle  Eaisers'  Assn.  v.  (12  I.  C.  C.,  1), 83 

M.  K.  &  T.  E.  Co.,  Cattle  Eaisers'  Assn.  v.  (13  I.  C.  C.,  418), 133, 145 

M.  K.  &  T.  E.  Co.,  Denison  L.  &  P.  Co.  v.  (10  I.  C.  C.,  337), 73 

M.  K.  &  T.  E.  Co.,  Harrell  v.  (12  I.  C.  C.,  28),  139, 186 

M.  K.  &  T.  E.  Co.,  Jerome  Hill  Cotton  Co.  v.  (6  I.  C.  C.,  601), 80 

M.  K.  &  T.  E.  Co.,  Mo.  &  Kans.  S.  Assn.  v.  (12  I.  C.  C.,  483), 16,  81 

M.  K.  &  T.  E.  Co.,  U.  S.  v.  (D.  C.,  Mo.), 221 

M.  P.  E.  Co.,  Anthony  Salt  Co.  v.  (5  I.  C.  C.,  299), 72,  77,  80 

M.  P.  E.  Co.,  Associated  W.  Gro.  v.  (1  I.  C.  C.,  156), 84 

M.  P.  E.  Co.,  Baer  Bros.  M.  Co.  v.  (13  I.  C.  C.,  329), 35, 133 

M.  P.  E.  Co.  v.  Brinkmeier  (S.  C.,  Kans.,  Apr.  6,  1907),  55 

M.  P.  E.  Co.,  Carlisle  v.  (168  Mo.,  652), 22 

M.  P.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  N.  Dak.), 236 

M.  P.  E.  Co.,  Kauffman  M.  Co.  v.  (4  I.  C.  C.,  417),  75,  77, 154 

M.  P.  E.  Co.,  Lincoln  B.  of  T.  v.  (2  I.  C.  C.,  155), 76,  79 

M.  P.  E.  Co.,  McGrew  v.  (8  I.  C.  C.,  630),  31, 151 

M.  P.  E.  Co.,  Mo.  ex  rel.  v.  (S.  C.,  Mo.,  June  6,  1908), 55 

M.  P.  E.  Co.,  U.  S.  ex  rel.  v.  (C.  C.,  Kans.), 243 

M.  P.  E.  Co.,  U.  S.  v.  (C.  C.,  Mo.),  205,  243 

M.  P.  E.  Co.,  U.  S.  v.  (65  Fed.,  903),  48,  200,  262 

M.  P.  E.  Co.,  U.  S.  v.  (65  Fed.,  909), 24 

M.  P.  E.  Co.  v.  U.  S.   (189  U.  S.,  274), 47,  49, 200 

M.  P.  E.  Co.  v.  U.  S.  (189  U.  S.,  283), 192 

M.  P.  E.  Co.,  Wichita  v.  (10  I.  C.  C.,  35), 73,  78 

M.  V.  E.  Co.,  Eddleman  et  al.  v.  (13  I.  C.  C.,  103),  31, 113 

M.  V.  E.  Co.,  Mchts.  Frt.  Bu.  v.  (13  I.  C.  C.,  243), 168 

MacLoon  v.  B.  &  M.  E.  Co.  (9  I.  C.  C.,  642), 73 

MacLoon  v.  C.  &  N.  W.  Co.  (5  I.  C.  C.,  84),  23, 31,  72,  77,  83 

McCardle,  ex  parte   (7  Wall.,  514) ,  18 

McCaull-Dinsmore  Co.,  U.  S.  v.  (D.  C.,  Minn.),  224 

McClelen  v.  S.  E.  Co.  (6  I.  C.  C.,  588),  80 

McCormick,  U.  S.  v.  (D.  C.,  Md.),  212 

McDonald  v.  Hovey   (110  U.  S.,  619),   66 

McGrew  v.  M.  P.  E.  Co.  (8  I.  C.  C.,  630), 31, 151 

McMillan  &  Co.  v.  Western  Classification  Committee  (4  I.  C.  C.,  276),  .  .83,  84, 118 

McMorran  v.  G.  T.  E.  Co.  (3  I.  C.  C.,  252),  71,  75,  77 

McNulta  v.  Lockridge  (141  U.  S.,  327),  254 

McNulty  v.  Batty   (10  How.,  72),    18 

McNeill,  rec.,  May  v.   (6  I.  C.  C.,  520),   35 

McPherson  v.  Gallagan  (1  H.  &  H.,  394),  187 

McEae  T.  Co.  v.  S.  E.  Co.  (12  I.  C.  C.,  270), 168 

Macon  G.  Co.  v.  A.  C.  L.  E.  Co.  (163  Fed.,  738), 208 

Manhattan,  etc.,  Ins.  Co.,  Albro  v.   (119  Fed.,  629),   257 

Manning  v.  C.  &  A.  E.  Co.  (13  I.  C.  C.,  125),  17,  43 

M.  &  J.  Union  v.  M.  &  St.  L.  E.  Co.   (1  I.  C.  C.,  227),  71,75,77,140 

Maryland,  Brown  v.  (12  Wheat,  419),  41 

Marshall  Oil  Co.  v.  C.  &  N.  W.  E.  Co.  (14  I.  C.  C.,  210), 44 

Marten  v.  L.  &  N.  E.  Co.  (9  I.  C.  C.,  581),  73,  81 

Martin  v.  C.  B.  &  Q.  E.  Co.  (2  I.  C.  C.,  25), 71,  74,  76 

Martin  v.  S.  P,  E.  Co,  (2  I.  C.  C,,  1),  74, 76, 79 


420  TABLE  OP  CASES 

*         Pajre 

Mason  v.  G.  E.  I.  &  P.  R.  Co.  (12  I.  C.  C.,  61), 158 

Mastin,  Minot  v.   (95  Fed.,  737),   255 

Matthews  v.  A.  T.  &  S.  F.  E.  Co.  (5  I.  C.  C.,  299), ,.  .72, 77,  80 

Matthews  v.  U.  P.  E.  Co.  (5  I.  C.  C.,  299),  72,  77,  80 

Mattingly  v.  P.  Co.    (3  I.  C.  C.,  592),   17,35,73,79,82,118 

Maxwell  v.  Creswell  (3  MacA.,  374),  187 

Mayor,  etc.,  of  T.  v.  L.  &  N.  E.  Co.  (9  I.  C.  C.,  160), 73, 78,  81 

Mayor,  etc.,  of  W.  v.  A.  T.  &  8.  F.  E.  Co.  (9  I.  C.  C.,  534), 81 

Mayor,  etc.,  of  W.  v.  A.  T.  &  S.  F.  E.  Co.  (9  I.  C.  C.,  558),  .73, 78,  81, 110, 120, 174 

Mayor,  etc.,  of  W.  v.  C.  E.  I.  &  P.  E.  Co.  (9  I.  C.  C.,  569), 73,  81 

May  v.  McNeill,  rec.  (6  I.  C.  C.,  520),  35 

Means,  U.  S.  v.   (D.  C.,  Pa.),  213, 214 

Mellen,  U.  S.  v.   (D.  C.,  Kans.),   228 

Menacho,  Ward  v.  (27  Fed.,  529),   195 

Merchants'  Assn.  v.  N.  Y.  N.  H.  &  H.  E.  Co.  (13  I.  C.  C.,  225), 130 

Merchants'  Frt.  Bu.  v.  M.  V.  E.  Co.  (13  I.  C.  C.,  243), 168 

Merchants'  Union  v.  N.  P.  E.  Co.   (5  I.  C.  C.,  478),   35,72,74,78,80 

Mershon  v.  Central  E.  Co.  (10  I.  C.  C.,  456),  79 

Miami  S.  S.  Co.,  G.  C.  &  S.  F.  E.  Co.  v.  (86  Fed.,  407), 66 

Mich.  Box  Co.  v.  F.  &  P.  M.  E.  Co.  (6  I.  C.  C.,  335), 140 

Mich.  Cong.  Water  Co.  v.  C.  &  G.  T.  E.  Co.  (2  I.  C.  C.,  594), 71,  77, 109, 117 

Milk,  etc.,  Assn.  v.  D.  L.  &  W.  E.  Co.  (7  I.  C.  C.,  92), 113, 114 

Milk  P.  Assn.  v.  D.  L.  &  W.  E.  Co.  (7  I.  C.  C.,  92), 34, 47,  72,  78, 80 

Miller,  U.  S.  v.   (D.  C.,  111.),  212 

Mills,  U.  S.  v.  (8  App.  D.  C.,  500),  187 

Mil.  Eef.  T.  Co.,  U.  S.  v.  (C.  C.,  Wis.),  243 

Minn.  C.  M.  &  St.  P.  E.  Co.  v.  (134  II.  S.,  418), 15, 195 

Minn.  v.  Northern  Securities  Co.  (194  U.  S.,  48), 233,  234 

Minot  v.  Mastin  (95  Fed.,  737),  255 

Miss.  Co.,  Lonergan  v.   (5  Fed.,  778),  257 

Mo.  ex  rel.  v.  M.  P.  E.  Co.  (C.  C.,  Mo.,  June  6,  1908), 55 

Mo.  &  111.  E.  E.  T.  &  L.  Co.  y.  C.  G.  &  S.  W.  E.  Co.  (1  I.  C.  C.,  30),  ...       36,  73 

Mo.  &  Kans.  S.  Assn.  v.  M.  K  &  T.  E.  Co.  (12  I.  C.  C.,  483), 16,  81 

Mo.  &  Kans.  S.  Assn.  v.  A.  T.  &  S.  F.  E.  Co.  (13  I.  C.  C.,  411),  .  .95, 103, 110, 113 

Mo.,  Emert  v.  (156  U.  S.,  292), 41 

Mo.,  Welton  v.  (91  U.  S.,  275),  41 

Mobile  v.  Kimball  (102  U.  S.,  691),  139 

Monroe  Progressive  League  v.  V.  S.  &  P.  E.  Co.  (I.  C.  C.  Docket,  1388),  122 

Mont.,  Burrell  v.  (194  U.  S.,  572),  161 

Montell  v.  B.  &  O.  E.  Co.  (7  L  C.  C.,  412), 78 

Moore  &  Moore,  U.  S.  v.   (C.  C.,  Va.),   218 

Moore,  Kelly  v.   (22  App.,  1),   187 

Moore,  Parker  v.    (11  Fed.,  470),  257 

Moore  v.  U.  S.  (85  Fed.,  465),  18 

Moore  v.  U.  S.  (91  U.  S.,  270), 144 

Morash,  Erb  v.  (177  U.  S.,  584),   254 

Morris,  Stewart  v.   (89  Fed.,  290),   257 

Morris,  U.  S.  v.  (14  Pet.,  464),  119 

Morris,  U.   S.  v.    (D.  C.,  111.),   214 

Morseman,  U.  S.  v.   (42  Fed.,  448),   33,  210,  212 

Morton,  Anderson  v.   (23  App.  D.  C.,  445), 187 

Mt,  Vernon  M.  Co,  v.  C.  M.  &  St.  P.  E.  Co.  (7  I.  C.  C.,  194), 78 


TABLE  OF  CASES  421 

Page 

Murphy,  Wasey  &  Co.  v.  W.  R.  Co.  (5  I.  C.  C.,  122), 72 

Mutual  Transit  Co.,  U.  S.  v.  (D.  C.,  Pa.),  218 

Mutual  Transit  Co.,  U.  S.  v., , 228 

Myers  v.  P.  Co.  (3  I.  C.  C.,  130), ! 183 

Myers  v.  P.  Co.  (2  I.  C.  C.,  573), 71 

N.  &  W.  E.  Co.,  Natl.  W.  L.  D.  Assn.  v.  (9  I.  C.  C.,  87), 73 

N.  &  W.  E.  Co.,  Powhatan  C.  &  C.  Co.  v.  (13  I.  C.  C.,.  69),  58 

N.  &  W.  E.  Co.,  U.  S.  ex  rel.,  Coffman  v.  (109  Fed.,  821), 58 

N.  C.  &  St.  L.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Fla.), 237 

N.  C.  &  St.  L.  E.  Co.,  B.  of  T.  v.  (8  I.  C.  C.,  503), 24,  78,  81 

N.  C.  &  St.  L.  E.  Co.,  Hill  v.  (6  I.  C.  C.,  343), 80 

N.  E.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  S.  C.), 237 

N.  E.  E.  Co.,  L  C.  C.  v.  (74  Fed.,  70), 15 

N.  E.  E.  Co.,  Truck  Farmers'  Assn.  v.  (6  I.  C.  C.,  295), 72 

N.  N.  &  M.  V.  Co.,  Eawson  v.  (3  I.  C.  C.,  266),  42,  83,  84 

N.  P.  E.  Co.,  Buchanan  v.  (5  I.  C.  C.,  7), 72 

N.  P.  E.  Co.,  Com.  Club  v.  (13  I.  C.  C.,  288), 105, 120 

N.  P.  E.  Co.,  Frye  &  Bruhn  v.  (13  I.  C.  C.,  501), 133, 134, 146, 150 

N.  P.  E.  Co.,  George  Tileston  M.  Co.  v.  (8  I.  C.  C.,  346), 81 

N.  P.  E.  Co.,  Merchants'  Union  v.   (5  I.  C.  C.,  478),   35,  72, 74,  80 

N.  P.  E.  Co.,  O.  S.  L.  &  U.  N.  E.  Co.  v.  (51  Fed.,  465), 170 

N.  P.  E.  Co.,  O.  S.  L.  E.  Co.  v.  (3  I.  C.  C.,  264), 126 

N.  P.  E.  Co.,  Pacific  Coast  Mfg.  Assn.  v.  (14  I.  C.  C.,  28), 152 

N.  P.  E.  Co.,  Potlach  L.  Co.  v.  (14  I.  C.  C.,  41), 209 

N.  P.  E.  Co.,  Eaworth  v.  (5  I.  C.  C.,  234),  35,  74,  75,  80, 104 

N.  P.  E.  Co.,  Slater  v.  (2  I.  C.  C.,  359), 74,  76, 102 

N.  P.  E.  Co.,  Smith  v.  (1  I.  C.  C.,  208),  23,  74 

N.  P.  E.  Co.,  U.  S.  v.  (120  Fed.,  546),  53 

N.  P.  E.  Co.  v.  I.  C.  C.  (C.  C.,  Minn.  Eq.,  884,  Oct.  20,  1908), 348 

N.  P.  E.  Co.,  Wylie  v.  (11  I.  C.  C.,  145), 82 

N.  P.  T.  Co.,  U.  S.  v.  (144  Fed.,  861), 54 

N.  Y.  &  H.  E.  Co.,  Savery  v.  (2  I.  C.  C.,  338), 64,  71,  74 

N.  Y.  &  H.  E.  Co.  v.  Platt  (7  I.  C.  C.,  323), 82 

N.  Y.  &  N.  E.  E.  Co.,  Boston  F.  &  P.  Ex.  v.  (4  I.  C.  C.,  664), 33, 

72, 74,  82,  83,  84, 113, 144, 145 

N.  Y.  &  N.  E.  E.  Co.,  Boston  F.  &  P.  Ex.  v.  (5  I.  C.  C.,  1), 72,  74 

N.  Y.  &  N.  E.  E.  Co.,  N.  Y.  &  N.  E.  Co.  v.  (4  L  C.  C.,  702), 70 

N.  Y.  &  N.  E.  Co.  v.  N.  Y.  &  N.  E.  E.  Co.  (4  I.  C.  C.,  702), 79 

N.  Y.  &  T.  S.  S.  Co.,  U.  S.  ex  rel.  v.  (C.  C.,  N.  Y.), 204 

N.  Y.  C.  &  H.  E.  Co.,  Banner  M.  Co.  v.  (14  I.  C.  C.,  398), 154,  207 

N.  Y.  C.  &  H.  E.  Co.,  Crawford  v.  (10  Am.  Neg.  Eep.,  166), 54 

N.  Y.  C.  &  H.  E.  E.  Co.,  C.  E.  I.  &  P.  E.  Co.  v.  (1  I.  C.  C.,  86), 79 

N.  Y.  C.  &  H.  E.  E.  Co.,  General  Electric  Co.  v.  (14  I.  C.  C.,  237), 43 

N.  Y.  C.  &  H.  E.  E.  Co.,  Greene  v.  (3  I.  C.  C.,  473), 71,  77 

N.  Y.  C.  &  H.  E.  E.  Co.  v.  L  C.  C.  (C.  C.,  N.  Y.), 206,  207 

N.  Y.  C.  &  H.  E.  E.  Co.,  Leggett  &  Co.  v.  (3  I.  C.  C.,  473), 71,  75,  77 

N.  Y.  C.  &  H.  E.  E.  Co.,  N.  Y.  P.  Ex.  v.  (3  I.  C.  C.,  137), 75,  77,  82 

N.  Y.  C.  &  H.  E.  E.  Co.,  Poughkeepsie  Iron  Co.  v.  (4  I.  C.  C.,  195),  71,  77,  84, 119 

N.  Y.  C.  &  H.  E.  E.  Co.,  Thurber  v.  (3  I.  C.  C.,  473), 71,  75,  77 

N.  Y.  C.  &  H.  E.  E.  Co.,  U.  S.  v.  (C.  C.,  N.  Y.), 222 

N.  Y.  C.  &  H.  E.  E.  Co.,  U.  S.  v.  (D.  C.,  N.  Y.), 215,  227 


422  TABLE  OF  CASES 

Page 

N.  Y.  C.  &  H.  E.  E.  Co.  &  P.  E.  Co.,  U.  S.  v.  (D.  C.,  N.  Y.), 227 

N.  Y.  C.  &  H.  E.  E.  Co.,  Guilford  and  Pomeroy,  U.  8.  vt  (C.  C.,  N.  Y.),  .  222 

N.  Y.  C.  &  H.  E.  E.  Co.  and  Guilford,  U.  S.  v.  (D.  C.,  N.  Y.), 220 

N.  Y.  C.  &  H.  E.  E.  Co.,  U.  S.  v.  (D.  C.,  N.  Y.), 220 

N.  Y.  C.  &  H.  E.  B.  Co.,  U.  S.  ex  rel.  v.  (C.  C.,  N.  Y.), 205 

N.  Y.  C.  &  H.  E.  E.  Co.,  Warner  v.  (4  I.  C.  C.,  32), 71, 75,  77 

N.  Y.  C.  &  St.  L.  E.  Co.,  U.  S.  v.  (D.  C.,  HL), 216 

N.  Y.  C.  &  St.  L.  E.  Co.,  and  L.  V.  E.  Co.,  U.  S.  v.  (D.  C.,  HI.), 216 

N.  Y.  L.  E.  &  W.  E.  Co.,  Howell  v.  (2  I.  C.  C.,  272), 42,  71,  76, 151, 166 

N.  Y.  L.  E.  &  W.  E.  Co.,  U.  S.  v.  (D.  C.,  Ohio), 212 

N.  Y.  L.  E.  &  W.  E.  Co.  v.  Eiddle,  Dean  &  Co.  (1  I.  C.  C.,  594), 74,  83 

N.  Y.  N.  H.  &  H.  E.  E.  Co.,  Hewins  v.  (10  I.  C.  C.,  221), 78 

N.  Y.  N.  H.  &  H.  E.  Co.,  King  &  Co.  v.  (4  I.  C.  C.,  251), 71,  79,  80,  84 

N.  Y.  N.  H.  &  H.  E.  Co.,  Merchants'  Assn.  v.  (13  I.  C.  C.,  225), 130 

N.  Y.  O.  &  W.  E.  Co.,  U.  S.  v.  (D.  C.,  N.  Y.),  226 

N.  Y.  P.  &  N.  E.  Co.,  Delaware  State  Grange  v.  (2  I.  C.  C.,  309), 107 

N.  Y.  P.  &  N.  E.  Co.,  Delaware  State  Grange  v.  (4  I.  C.  C.,  588), 72,  80,  84 

N.  Y.  P.  &  N.  E.  Co.,  Delaware  State  Grange,  etc.,  v.  (5  I.  C.  C.,  161),  .  72 

N.  Y.  P.  &  N.  E.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Va.), 236 

N.  Y.  S.  N.  E.  E.  Co.,  Woodruff  v.  (59  Conn.,  63),  22 

Natl.  Hay  Assn.  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  264), 63, 

73,  78, 109, 126, 177,  246 

Natl.  Petroleum  Assn.  v.  A.  A.  E.  Co.  (14  I.  C.  C.,  272), 102, 105, 114 

Natl.  W.  L.  Dlrs.  Assn.  v.  N.  &  W.  E.  Co.  (9  I.  C.  C.,  87), 73 

Neiburg,  U.  S.  v.  (D.  C.,  Vt.), 217 

Nelson  v.  U.  S.  (201  U.  S.,  92),  163 

Nelson  Morris  &  Co.,  U.  S.  v.  (D.  C.,  Mo.),  219 

New  Jersey  F.  Ex.  v.  C.  E.  Co.  (2  I.  C.  C.,  142), 34,  40,  73 

New  Mexico  ex  rel.  v.  Baker  (196  U,  S.,  432),  196 

Nistas,  U.  S.  v.  (D.  C.,  Mo.),  221 

Nistas,  Clark  and  Agnes,  U.  S.  v.  (D.  C.,  Mo.), 229 

Nicolai  v.  P.  E.  Co.  (2  I.  C.  C.,  131),  71 

Nicolai  v.  P.  E.  Co.  (5  I.  C.  C.,  635), 72 

Nicola,  Stone  &  Meyers  Co.  v.  L.  &  W.  E.  Co.  (14  I.  C.  C.,  199), 97, 

110, 130, 132 

Nield  v.  C.  St.  P.  M.  &  O.  E.  Co.  (12  I.  C.  C.,  202), 168 

N.  O.  Cotton  Ex.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (2  I.  C.  C.,  375), 34,  71, 121 

N.  O.  Cotton  Ex.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (3  I.  C.  C.,  534),  71,  75,  77 

N.  O.  Cotton  Ex.  v.  I.  C.  E.  Co.  (3  I.  C.  C.,  534), 71 

N.  O.  Cotton  Ex.  v.  L.  N.  O.  &  T.  E.  Co.  (4  I.  C.  C.,  694), 82,  84, 134, 140 

Nobles  Bros.  Gro.  Co.  v.  Ft.  W.  &  D.  C.  E.  Co.  (12  I.  C.  C.,  242), 26 

Norris  v.  Crocker  (13  How.,  429),   18 

Northern  Securities  Co.,  Minn.  v.  (194  U.  S.,  48),  233,  234 

Northern  Securities  Co.  v.  U.  S.  (193  U.  S.,  197), 61 

Northern  S.  S.  Co.,  U.  S.  v.  (C.  C.,  N.  Y.),  223 

Norton,  Pritchard  v.  (106  U.  S.,  124),  246 

N.  Y.  B.  of  T.  &  T.  v.  P.  E.  Co.  (4  I.  C.  C.,  447),  34, 

39,    64,  72,  74,  75,  77,  82,  84, 173 

N.  Y.  Hay  Ex.  v.  P.  E.  Co.  (14  I.  C.  C.,  178), 18 

N.  Y.  P.  Ex.  v.  B.  &  O.  E.  Co.  (7  I.  C.  C.,  612), 17,  78 

N.  Y.  P.  Ex.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  137), 75,  77,  82 

O.  S.  L.  &  U.  N.  E.  Co.  v.  N.  P.  E.  Co.  (51  Fed.,  456), 170 


TABLE  OF  CASES  423 

-,.,..,      .-  ..      ,  - 

v 

Page 

O.  S.  L.  &  U.  N.  B.  Co.  v.  N.  P.  E.  Co.  (61  Fed.,  158),         170 

O.  S.  L.  E.  Co.,  U.  8.  v.  (D.  C.,  Idaho,  June  4,  1908), 55 

O.  S.  L.  E.  Co.  v.  N.  P.  E.  Co.  (3  I.  C.  C.,  264),  . '. 126 

O.  D.  S.  S.  Co.,  B.  of  T.  v.  (6  I.  C.  C.,  632),  80, 136 

Ocean  S.  S.  Co.,  I.  C.  C.  v.  (C.  C.,  Ga.),  236 

Ocean  S.  S.  Co.,  E.  Com.  v.  (5  I.  C.  C.,  324), 72,  74,  75,  77,  84 

Ocean  S.  S.  Co.  E.  Com.  v.  (5  I.  C.  C.,  324), 83 

Ocheltree  G  Co.  v.  C.  E.  I.  &  P.  E.  Co.  (13  I.  C.  C.,  238), 141 

Ocheltree  G.  Co.  v.  St.  L.  &  S.  F.  E.  Co.  (13  I.  C.  C.,  46), 153 

Oelrich  v.  Spain  (82  U.  S.,  211), 195 

Ogden,  Gibbons  v.    (9  Wheat.,  1),   41 

Okla.  &  Ark.  C.  T.  Bu.  v.  C.  E.  I.  &  P.  E.  Co.  (I.  C.  C.  Docket,  1097),  . .  321 

Osborne,  C.  &  N.  W.  E.  Co.  (52  Fed.,  914),  66, 170 

Osborne  v.  C.  &  N.  W.  E.  Co.  (48  Fed.,  49),  171 

Osbornes,  Assessors  v.   (9  Wall.,  567),   203 

Ottumwa  B.  Co.  v.  C.  M.  &  St.  P.  E.  Co.  (14  I.  C.  C.,  121), 150 

P.  &  L.  E.  E.  Co.,  Imperial  Coal  Co.  v.  (21.  C.  C.,  618), 77,79 

P.  &  L.  E.  E.  Co.,  Eiddle,  Dean  &  Co.  v.  (II.  C.  C.,  374), 74, 97, 181, 182 

P.  &  E.  E.  Co.,  I.  C.  C.  v.  (123  Fed.,  970), 259 

P.  &  E.  E.  Co.,  Pa.  State  M.  Assn.  v.  (8  L  C.  C.,  531), 37,73,76,78,81 

P.  &  E.  E.  Co.,  Swift  v.   (58  Fed.,  858),  22, 194,  233 

P.  &  E.  E.  Co.,  U.  S.  v.  (D.  C.,  Pa.,  Mar.  17,  1908), 55 

P.  &  E.  E.  Co.  v.  Winkler  (4  Pennewill  (Del.),  387), 54 

P.  &  E.  E.  Co.,  Winkler  v.   (53  Atl.,  90),  55 

P.  &  T.  E.  Co.,  Birmingham  P.  Co.  v.  (12  I.  C.  C.,  29), 168 

P.  &  W.  E.  Co.,  Providence  Coal  Co.  v.  (1  I.  C.  C.,  107), 74, 76 

P.  C.  &  St.  L.  E.  Co.,  Andrews  Soap  Co.  v.  (4  I.  C.  C.,  41), 71,  75,  77 

P.  C.  &  St.  L.  E.  Co.,  Beaver  &  Co.  v.  (4  I.  C.  C.,  733), 75 

P.  C.  &  St.  L.  E.  Co.  v.  B.  &  O.  E.  Co.  (3  I.  C.  C.,  465), 75,  82,  84 

P.  C.  C.  &  St.  L.  E.  Co.,  U.  S.  v.  (143  Fed.,  360), 54 

P.  C.  C.  &  St.  L.  E.Co.,  Pittsburg  P.  G.  Co.  v.  (13  L  C.  C.,  87), 39 

P.  Co.,  Harvard  Co.  v.  (4  L  C.  C.,  212), 71,77 

P.  Co.,  Mattingly  v.   (3  I.  C.  C.,  592),   17,  35,  73,  79,  82, 118 

P.  Co.,  Myers  v.  (3  I.  C.  C.,  130),  71, 183 

P.  Co.,  Parkhurst  &  Co.,  v.  (2  I.  C.  C.,  131), 71 

P.  Co.,  Stowe-Fuller  v.  (12  I.  C.  C.,  215),  177 

P.  Co.,  T.  A.  A.  &  N.  M.  E.  Co.  v.  (54  Fed.,  730),  192, 194 

P.  Co.,  T.  A.  A.  &  N.  M.  E.  Co.  v.  (54  Fed.,  746),  193, 195 

P.  Co.  v.  L.  N.  A.  &  C.  E.  Co.  (3  I.  C.  C.,  223),  42 

P.  C.  E.  Co.,  TL  S.  v.  (D.  C.,  Cal.,  June  13,  1908), 55 

P.  C.  E.  Co.,  U.  S.  v.  (D.  C.,  Cal.),  216 

Pere  Marquette  E.  Co.,  re  (10  I.  C.  C.,  360), 73 

P.  M.  E.  Co.,  Davis  (10  I.  C.  C.,  405),  82,  83 

P.  M.  E.  Co.,  re  (10  I.  C.  C.,  360),  73 

P.  M.  E.  Co.,  Eichmond  Eltr.  Co.  v.  (10  I.  C.  C.,  629), 22,79,134,151,167 

P.  E.  Co.,  Bates  v.  (3  I.  C.  C.,  435),   75,  77, 121 

P.  E.  Co.,  Bates  v.   (4  I.  C.  C.,  281),   83,  84 

P.  E.  Co.,  C.  &  A.  E.  Co.  v.  (1  I.  C.  C.,  86), 79 

P.  E.  Co.,  Hurlburt  v.   (2  I.  C.  C.,  130),  71,  76, 145 

P.  E.  Cc.,  Indpt.  Eef.  Assn.  v.   (5  L  C.  C.,  415),   72,75,78,81,84 

P.  E.  Co.,  Logan  Coal  Co.  v.  (154  Fed.,  497),  58 


424  TABLE  OF  CASES 


P.  E.  Co.,  Nicolai  v.  (2  I.  C.  C.,  131),  ..............................  71 

P.  E.  Co.,  Nicolai  v.  (5  I.  C.  C.,  635),  ..............................  72 

P.  E.  Co.,  New  York  Hay  Exchange  v.  (14  I.  C.  C.,  178),  ............  18 

P.  E.  Co.,  N.  Y.  B.  of  T.  &  T.  v.  (4  I.  C.  C.,  447),  ..................  34, 

39,  72,  74,  75,  77,  82,  84,  173 
P.  E.  Co.,  Parkhurst  &  Co.  v.  (5  L  C.  C.,  635),  ......................  72 

P.  E.  Co.,  Eau  v.  (12  L  C.  C.,  200),  ...............................  139 

P.  E.  Co.,  Swift  v.  (58  Fed.,  858),  .................................  234 

P.  E.  Co.,  Stowe-Fuller  Co.  v.  (12  I.  C.  C.,  215),  ....................  177 

P.  E.  Co.,  Thompson  v.   (10  I.  C.  C.,  640),   .......................  76,79,113 

P.  E.  Co.,  17.  S.  v.  (D.  C.,  N.  Y.),  ..................................  223,  227 

P.  E.  Co.,  U.  S.  v.  (D.  C.,  Pa.,  Mar.  18,  1908),  ......................  55 

P.  E.  Co.,  Worcester  Excursion  Car  Co.  v.  (3  I.  C.  C.,  577),  ..........  75,  77,  79 

Pa.,  E.  E.  v.  (136  U.  S.,  114),  .....................................  41 

Pa.,  E.  E.  v.   (145  U.  S.,  192),    ...................................  41 

Pacific  Mail  S.  S.  Co.,  U.  S.  v.  (D.  C.,  CaL),  ........................  216 

Pacific  Coast  Mfg.  Assn.  v.  N.  P.  E.  Co.  (14  I.  C.  C.,  28),  ............  152 

Padgett  v.  D.  C.  (17  App.,  D.  C.,  255),  .............................  187 

Page  v.  D.  L.  &  W.  E.  Co.   (6  I.  C.  C.,  548),   .....................  28,  46,  117 

Palliser,  re  (136  U.  S.,  257),  ......................................  232 

Pa.  M.  State  Assn.  v.  P.  &  E.  E.  Co.  (8  I.  C.  C.,  531),  ...........  37,  73,  78,  81 

Pankey  v.  E.  &  D.  E.  Co.  (3  I.  C.  C.,  658),  .........................  71 

Papy  &  Menzies,  U.  S.  v.  (D.  C.,  Fla.),  ............................  214 

Paquete  Habana,  The  (175  U.  S.,  677),  ............................  21 

Parker  v.  Moore   (11  Fed.,  470),  ..................................  257 

Parkhurst  &  Co.  v.  P.  Co.  (2  I.  C.  C.,  131),  ..........................  71 

Parkhurst  &  Co.  v.  P.  E.  Co.  (5  L  C.  C.,  635),  .  .  ....................  72 

Parks  v.  C.  &  M.  V.  E.  Co.  (10  I.  C.  C.,  47),  ........................  79 

Passenger  Tariffs,  re  (2  I.  C.  C.,  649),  .............................  74,  82,  84 

Passenger  Tariffs  and  Eate  Wars,  re  (2  L  C.  C.,  513),  ...............  74,  79,  82 

Patriarche  &  Sterns  S.  &  L.  Co.,  U.  S.  v.  (D.  C.,  Mich.),  .............  220 

Paxton  Tie  Co.  v.  D.  S.  E.  Co.  (10  I.  C.  C.,  422),  ....................       78,  82 

Peale  v.  Phipps  (14  How.,  374),  ...................................  254 

Peasley,  re  (D.  C.,  111.),  ..........................................  261 

Penn  Fruit  Co.,  U.  S.  v.  (D.  C.,  CaL),  ..............................  228 

Pennington  &  Pleasants,  U.  S.  v.  (D.  C.,  Fla.),  ......................  214 

Pentlarge  v.  Kirby  (19  Fed.,  501),   ................................  202 

People  v.  Cannon  (139  N.  Y.,  32;  36  Am.  St.  Eep.),  .................  258 

Perry  v.  F.  C.  &  P.  E.  Co.  (5  I.  C.  C.,  97),  ......  31,  32,  33,  47,  72,  80,  83,  134,  151 

Peters,  Wheaton  v.   (8  Pet.,  591),   .................................  194 

Petition  Produce  Ex.  of  Toledo,  re  (2  I.  C.  C.,  588),  ................     76,  184 

Petition  of  Trade  and  Trav.  Union,  re  (1  I.  C.  C.,  8),  .................  42 

Phelps  v.  T.  &  P.  E.  Co.  (6  I.  C.  C.,  36),  ..........................  82 

Phila.,  Gilman  v.   (3  Wall.,  724),   ..................................  41 

Phillips,  Bailey  &  Co.  v.  L.  &  N.  E.  Co.  (8  I.  C.  C.,  93),  ...............  73,  78,  80 

Phipps,  Peale  v.    (14  How.,  374),   .................................  254 

Pitts  &  Son  v.  A.  T.  &  S.  F.  E.  Co.  (10  I.  C.  C.,  691),  ................  134 

Pitts.  P.  G.  Co.  v.  P.  C.  C.  &  St.  L.  E.  Co.  (13  I.  C.  C.,  87),  ..........  39 

Pitts,  v.  A.  T.  &  S.  F.  E.  Co.  (10  I.  C.  C.,  691),  .....................     73,  120 

Pitts,  v.  St.  L.  &  S.  F.  E.  Co.  (10  I.  C.  C.,  684),  .....................  73 

Platt,  N.  Y.  &  H.  E.  E.  Co.  v.  (7  I.  C.  C.,  323),  .....................  82 

Potlach  L.  Co.  v.  N.  P.  E.  Co.  (14  I.  C.  C.,  41),  ....................  209 


TABLE  OF  CASES  425 

Page 

Potter  Mfg.  Co.  v.  C.  &  G.  T.  E.  Co.  (5  I.  C.  C.,  514), 72,  76,  7s 

Poughkeepsie  Iron  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C.,  195),  .71,77,  84, 119 

Powhatan  C.  &  C.  Co.  v.  N.  &  W.  E.  Co.  (13  I.  C.  C.,  69), 58 

Pratt  L.  Co.  v.  Chicago  H.  L.  E.  Co.  (10  I.  C.  C.,  29), 78 

Preston  &  Davis  v.  D.  L.  &  W.  E.  Co.  (12  I.  C.  C.,  114), 139,  206 

Price  &  Wells,  U.  S.  v.  (D.  C.,  Ky.), 229 

Price,  U.  S.  v.    (D.  C.,  Ky.),    214,215,228 

Pritchard  v.  Norton  (106  U.  S.,  124),  246 

Procedure  Cases  at  Issue,  re  (1  I.  C.  C.,  223),  98, 108, 127, 159 

Procedure  Concerning  Questions  of  Law,  re  (1  I.  C.  C.,  490),   98,111 

Proctor  &  Gamble  v.  C.  H.  &  D.  E.  Co.  (4  I.  C.  C.,  87), 71,  77 

Proctor  &  Gamble  v.  C.  H.  &  D.  E.  Co.  (4  I.  C.  C.,  433), 84, 183 

Proctor  &  Gamble  v.  C.  H.  &  D.  E.  Co.  (9  I.  C.  C.,  440), 73, 177 

Producers'  P.  Line  Co.  v.  St.  L.  M.  &  S.  E.  Co.  (12  I.  C.  C.,  186), 91 

Proposed  Advances  in  Bates,  re  (9  I.  C.  C.,  328), 152 

Proposed  Advances  in  Freight  Bates,  re  (9  I.  C.  C.,  382),   24,  73,  82 

Proposed  Increase  in  Minimum  Percentage  of  cars,  etc.,  re  (11  I.  C.  C., 

429),   55 

Providence  Coal  Co.  v.  P.  &  W.  E.  Co.  (1  I.  C.  C.,  107), 74,  76 

Providence  E.  Co.  v.  Goodyear  (9  Wall.,  788),   154 

Publication  and  Joint  Tariffs,  re  (1  I.  C.  C.,  6), 81 

Publication  and  Piling  of  Tariffs,  re  (10  L  C.  C.,  55), 19 

Publication  of  Export  Tariffs,  re  (1  I.  C.  C.,  6),   81 

Pyle  &  Sons  v.  E.  T.  V.  &  G.  E.  Co.  (1  I.  C.  C.,  465), 76 

E.  &  D.  E.  Co.,  B.  of  T.  v.   (2  I.  C.  C.,  304),  23, 121, 151 

E.  &  D.  E.  Co.,  Crews  v.  (1  I.  C.  C.,  401), 74,  76 

E.  &  D.  E.  Co.,  Fewell  v.  (7  I.  C.  C.,  354), 26,  80, 138 

E.  &  D.  E.  Co.,  Pankey  v.  (3  I.  C.  C.,  658), 71 

E.  &  D.  E.  Co.,  Sidman  v.  (3  I.  C.  C.,  512), 75 

E.  &  L.  E.  E.  Co.,  Eiddle,  Dean  &  Co.  v.  (1  I.  C.  C.,  490), 117 

Eahway  V.  E.  Co.  v.  D.  L.  &  W.  E.  Co.  (14  I.  C.  C.,  191), 168,  207 

E.  V.  E.  Co.  v.  D.  L.  &  W.  E.  Co.  (14  I.  C.  C.,  191), 27 

E.  W.  &  O.  E.  Co.,  re  (6  L  C.  C.,  328),  80 

E.  &  E.  C.  Co.  v.  B.  &  O.  E.  Co.  (14  I.  C.  C.,  46), 58 

B.  E.  Co.,  Wilson  v.  (7  I.  C.  C.,  83),  35,  40 

B.  E.  v.  Penn.   (136  U.  S.,  114),   41 

E.  E.  v.  Penn.  (145  U.  S.,  192),  41 

Be  A.  T.  &  S.  F.  B.  Co.  (7  I.  C.  C.,  593), 80 

Be  A.  W.  &  B.  E.  Co.  (1  I.  C.  C.,  345), 35 

Ee  Acts  and  Doings  of  G.  T.  E.  Co.  (3  I.  C.  C.,  89), 25,  34,  73,  75,  82,  83,  89 

Be  Alleged  Excessive  Freight,  etc.  (4  I.  C.  C.,  77),  80 

Ee  Alleged  Excessive  Freight  Bates,  etc.  (41.  C.  C.,  48), 71,  77 

Ee  Alleged  Excessive  Freight  Bates,  etc.,  (4  I.  C.  C.,  62), 83 

Ee  Alleged  Excessive  Freight  Bates,  etc.  (4  I.  C.  C.,  116), 25, 47,  50,  84, 167 

Ee  Alleged  Unlawful  Transportation  Charges  (6  I.  C.  C.,  624), 23 

Be  Alleged  Unlawful  Bates  (8  I.  C.  C.,  121),  81 

Ee  Alleged  Violations  Act  to  Eegulate  Commerce  (8  I.  C.  C.,  290), 78,81 

Ee  Alleged  Unlawful  Charges,  etc.  (8  I.  C.  C.,  585),  42, 151 

Ee  Alleged  Unlawful  Bates  and  Practices  (8  I.  C.  C.,  121), 24 

Ee< Alleged  Unlawful  Bates  and  Practices  (10  L  C.  C.,  473), 24 

Be  Alleged  Unlawful  Charges  for  Transportation  of  Coal  by  the  L.  &  N. 

B.  Co.  (5  I.  C.  C.,  466),  72, 75 


426  TABLE  OP  CASES 

Page 

Re  Allowances  to  Elevators  (12  I.  C.  C.,  86), 24 

Re  Allowances  to  Elevators  (13  I.  C.  C.,  498), 171, 184 

Re  Allowances  to  Elevators  (14  I.  C.  C.,  315), 27 

Re  Application  of  F.  W.  Clark  (3  I.  C.  C.,  649), 79 

Re  Application  of  Certain  Carriers,  etc.  (8  I.  C.  C.,  662;  9  I.  C.  C.,  522),  55 
Re  Application  of  C.  &  A.  R.  Co.  et  al.,  for  Extension  of  Time  for  Com- 
pliance with  Safety  Appliance  Act  (8  I.  C.  C.,  643),  55 

Re  Bills  of  Lading   (14  I.  C.  C.,  346),   17,  24, 169 

Re  Brimson  (C.  C.,  HI.),   261 

Re  Brown  (C.  C.,  Pa.),   261 

Re  C.  H.  &  D.  R.  Co.  (6  I.  C.  C.,  323), 80, 137 

Re  C.  St.  P.  &  K.  C.  R.  Co.  (2  I.  C.  C.,  231), 68,  71,  79, 121 

Re  Carriage  of  Persons  Free,  etc.  (51.  C.  C.,  69),  23,  79,  84 

Re   Counselman    (D.   C.,   111.),    * 261 

Re  Debs   (158  U.  S.,  582),  192,  241 

Re  Differential  Rates  to  and  from  Atlantic  Ports  (11  I.  C.  C.,  13),  .  .18,107,123 

Re  Disabled  Soldiers  and  Sailors  (1  I.  C.  C.,  28),  84 

Re  Divisions  of  Joint  Rates  (10  I.  C.  C.,  385), 24,  76 

Re  Export  Rates  from  Points  East  and  West  of  Miss.  River   (8  I.  C. 

C.,   185),    78, 82 

Re  Export  and  Domestic  Rates  on  Grain  (8  I.  C.  C.,  214), 81,  82 

Re  Express  Companies  (1  I.  C.  C.,  349), 17, 32,  67, 73 

Re  Filing  Joint  Tariffs  (1  I.  C.  C.,  657),   73 

Re  Fremont  E.  &  M.  V.  R.  Co.  (6  I.  C.  C.,  293), 80 

Re  Indian  Supplies  (1  I.  C.  C.,  15),  84 

Re  Joint  Tariffs  and  Schedules  (1  I.  C.  C.,  225), 81 

Re  Joint  Tariffs,  Circular  (2  I.  C.  C.,  656),   82 

Re  Joint  Water  &  Rail  Lines  (2  I.  C.  C.,  645),  74 

Re  L.  &  N.  R.  Co.  (1  I.  C.  C.,  31), 79 

Re  Lennon   (166  U.  S.,  548),    21, 193, 194, 196,  241,  242 

Re  Palliser  (136  U.  S.,  257),  232 

Re  Passenger  Tariffs  (2  I.  C.  C.,  649),  79, 82,  84 

Re  Passenger  Tariffs  and  Rate  Wars  (2  I.  C.  C.,  513), 74,  79,  82 

Re  Peasley  (D.  C.,  HI.),  261 

Re  Pere  Marquette  R.  Co.  (10  I.  C.  C.,  360), 73 

Re  Petition  of  C.  H.  &  D.  R.  Co.  (6  I.  C.  C.,  323), 25 

Re  Petition  Produce  Ex.  of  Toledo  (2  I.  C.  C.,  588), 76, 184 

Re  Petition  of  Trad,  and  Trav.  Union  (1  I.  C.  C.,  8), 42 

Re  Procedure  Cases  at  Issue  (1  I.  C.  C.,  223), 98, 108, 127, 159 

Re  Procedure  Concerning  Questions  of  Law  (1  I.  C.  C.,  224), 98,  111 

Re  Proposed  Advances  in  Freight  Rates  (9  I.  C.  C.,  382), 24,  73, 82, 152 

Re  Proposed  Increase  in  Minimum  Percentage  of  Cars,  etc.  (11  I.  C.  C., 

429),   55 

Re  Publication  and  Filing  of  Tariffs  (10  I.  C.  C.,  55), 19 

Re  Publication  and  Joint  Tariffs  (1  I.  C.  C.,  6),   81 

Re  Publication  of  Export  Tariffs  (1  I.  C.  C.,  658), 81 

Re  R.  W.  &  O.  R,  Co.  (6  I.  C.  C.,  328), 80 

Re  Rates  and  Practices  of  M.  &  O.  R.  Co.  (9  I.  C.  C.,  373), 82 

Re  Relative  Rates,  Export  and  Domestic  Traffic  (8  I.  C.  C.,  214), 24,  34 

Re  Relative  Tank  and  Barrel  Rates  on  Oil  (2  I.  C.  C.,  365), 74 

Re  Reichman  (D.  C.,  HI.,  1905),  262 

Re  Right  of  Railway  Companies  and  Baggage  Exp.  Co.  (12  I.  C.  C.,  39),  74 


TABLE  OF  CASES  427 

Page 

Ee  Keleased  Eates  (13  I.  C.  C.,  550), 169 

Be  S.  P.  Co.  (155  Fed.,  1001), 60 

Ee  S.  P.  E.  Co.  (1  I.  C.  C.,  6),  137 

Ee  Safety  of  Employees  &  Travellers  (6  I.  C.  C.,  332), 55 

Ee  Tariffs  and  Classifications  (3  I.  C.  C.,  19), 24 

Ee  Tariffs  &  Classifications  A.  &  W.  P.  E.  Co.  (3  I.  C.  C.,  19),  .  .71,  75,  77,  79,  82 

Ee  Tariffs  and  Classifications  of  G.  T.  E.  Co.  (3  I.  C.  C.,  89), 83 

Ee  Tariffs  of  C.  &  W.  E.  Co.  (1  I.  C.  C.,  626), 79 

Ee  Tariffs  on  Export  and  Import  Traffic  (10  I.  C.  C.,  55), 39 

Ee  Tariffs  of  Trans-Continental  Lines  (2  I.  C.  C.,  324), 76,  81 

Ee  Transportation  of  Coal  and  Mine  Supplies  (10  I.  C.  C.,  473), 76,82 

Ee  Transportation  of  Coal  by  L.  &  N.  E.  Co.  (5  I.  C.  C.,  466), 82 

Ee  Transportation  of  Immigrants  (10  I.  C.  C.,  13), 81 

Ee  Transportation  of  Salt,  etc.   (10  I.  C.  C.,  1),   78 

Ee  Transportation  of  Salt  (10  I.  C.  C.,  148), 76 

Ee  Through  Eoutes  and  Eates  (12  I.  C.  C.,  163), 24,  27, 33, 168 

Ee  Underbilling  (1  I.  C.  C.,  633),   76 

Ee  U.  S.  Commission  of  Fish  and  Fisheries  (1  I.  C.  C.,  21), 84 

E.  Com.,  S.  A.  L.  E.  Co.  v.  (155  Fed.,  792),  175 

E.  Com.,  Union  Terminal  E.  Co.  v.  (54  Kans.,  352),  184 

E.  Com.  v.  A.  T.  &  S.  F.  E.  Co.  (8  I.  C.  C.,  304), 81, 154 

E.  Com.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C.,  324),  33, 

35, 46,  68,  72,  74,  75,  77,  80,  83,  84, 109, 114 

E.  Com.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (5  I.  C.  C.,  324), 72,  74,  75,  78,  80,  83, 84 

E.  Com.  v.  C.  N.  O.  &  T.  P.  E.  Co.  (7  I.  C.  C.,  380), 80 

E.  Com.  v.  F.  E.  Co.  (8  I.  C.  C.,  1),  72 

E.  Com.  v.  G.  &  W.  A.  E.  Co.  (5  I.  C.  C.,  324), 84 

E.  Com.  v.  H.  V.  E.  Co.  (12  I.  C.  C.,  398),  16,  58 

E.  Com.  v.  L.  &  N.  E.  Co.  (5  I.  C.  C.,  324), 72,  74,  75,  78,  80,  83,  84 

E.  Com.  v.  L.  &  N.  E.  Co.  (10  I.  C.  C.,  173), 20,  43,  79,  82 

B  Com.  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  13),  72,  74,  82,  83 

E.  Com.  v.  Ocean  S.  S.  Co.  (5  I.  C.  C.,  324), 72,  74,  75,  77,  83,  84 

B.  Com.  v.  S.  C.  E.  Co.  (5  I.  C.  C.,  324),  72,  74,  75,  78,  80,  83,  84 

B.  Com.  v.  S.  F.  &  W.  E.  Co.  (5  I.  C.  C.,  13),  23,  25,  31, 35, 118 

E.  Com.  v.  W.  &  A.  E.  Co.   (5  I.  C.  C.,  324),  72,  74,  75,  78,  80,  83 

Bail  &  E.  Co.  v.  B.  &  O.  E.  Co.  (14  I.  C.  C.,  86),  69,  83,  206 

Eailroad,  Bowman  v.  (125  U.  S.,  456),  41 

Eailroad  Co.  v.  Grant  (98  U.  S.,  398),   18 

Bailway,  Schofield  v.   (43  Ohio  St.,  571),  195 

Bainey,  L.  V.  B.  Co.  v.  (99  Fed.,  596;  112  Fed.,  487), 234 

Eandolph  L.  Co.  v.  S.  A.  L.  E.  Co.  (14  L  C.  C.,  338),  184,  325 

Eates  and  Practices  of  M.  &  O.  Co.,  re  (9  I.  C.  C.,  373), 82 

Eatican  v.  Terminal  E.  Assn.  (114  Fed.,  666),  94,  238 

Eau  v.  P.  E.  Co.  (12  I.  C.  C.,  200),  139 

Baworth  v.  N.  P.  E.  Co.   (5  I.  C.  C.,  234),   35,  74,  75,  80, 104 

Eawson  v.  N.  N.  &  M.  V.  Co.  (3  I.  C.  C.,  266),  42,  83,  84 

Eaymond  v.  C.  M.  &  St.  P.  B.  Co.  (1  I.  C.  C.,  230), 76, 166 

Eeagan  v  Farmers'  L.  &  T.  Co.  (154  TJ.  S.,  412), 66 

Bed  Bock  Fuel  Co.  v.  B.  &  O.  E.  Co.  (11  I.  C.  C.,  438), 79 

Eeed,  U.  P.  E.  Co.  v.  (80  Fed.,  239),  257 

Eea  v.  M.  &  O.  E.  Co.  (7  I.  C.  C.,  43),  24 

Eeg.  v.  Helston  (12  Ann.  B.  E. ;  Lucas'  Sep.,  202), 181 


428  TABLE  OP  CASES 

Page 

Reiehman,  re  (D.  C.,  111.,  1905),   262 

Eeid,  U.  S.  v.   (D.  C.,  Kans.),   214 

Keleased  Kates,  re  (13  I.  C.  C.,  550),  169 

Eelative  Rates,  Export  and  Domestic  Traffic,  re  (81.  C.  C.,  214), 24,  34 

Relative  Tank  and  Barrel  Rates  on  Oil,  re  (2  I.  C.  C.,  365),  74 

Reliance  Textile  and  D.  Works  v.  S.  R.  Co.  (13  I.  C.  C.,  48), 40 

Remington  v.  Linthieum  (14  Pet.,  91),  257 

Rend  v.  C.  &  N.  W.  R.  Co.  (2  I.  C.  C.,  540), 76,  79 

Reynolds,  Cooper  v.  (10  Wall.,  308),   194 

Reynolds  v.  W.  N.  Y.  &  P.  R.  Co.  (1  I.  C.  C.,  347), 108, 121 

Reynolds  v.  W.  N.  Y.  &  P.  R.  Co.  (1  I.  C.  C.,  393), 76 

Rhodes  v.  Iowa  (170  U.  S.,  412),   41 

Rice  v.  A.  T.  &  S.  F.  R.  Co.  (4  I.  C.  C.,  228), 71,  77,  80,  84, 167 

Rice  v.  C.  W.  &  B.  R.  Co.  (3  I.  C.  C.,  186), . 83, 148, 14~9 

Rice  v.  C.  W.  &  B.  R.  Co.  (5  I.  C.  C.,  193),  23,  72,  75,  77 

Rice  v.  L.  &  N.  R.  Co.  (1  I.  C.  C.,  503), 43,  74,  76,  81, 121 

Rice  v.  L.  &  N.  R.  Co.  (3  I.  C.  C.,  186), 83 

Rice  v.  L.  &  N.  R.  Co.  (5  I.  C.  C.,  193),  72,  75,  77,  80 

Rice  v.  M.  &  N.  R.  Co.  (1  Black,  358), 191 

Rice  v.  St.  L.  S.  W.  R.  Co.  (5  I.  C.  C.,  660), 76,  78,  84, 140 

Rice,  R.  &  W.  v.  W.  N.  Y.  &  P.  R.  Co.  (2  I.  C.  C.,  389), 71,  74 

Rice,  R.  &  W.  v.  W.  N.  Y.  &  P.  R.  Co.  (3  I.  C.  C.,  87), 184 

Rice,  R.  &  W.  v.  W.  N.  Y.  &  P.  R.  Co.  (4  I.  C.  C.,  131), 74,  75,  77 

Rice,  R.  &  W.  v.  W.  N.  Y.  &  P.  R.  Co.  (6  I.  C.  C.,  455), 135 

Richmond  Silver  Mine  Co.,  Koenigsberger  v.  (158  U.  S.,  48), 18 

Richmond  Eltr.  Co.  v.  P.  M.  R.  Co.  (10  I.  C.  C.,  629), 22,  79, 134, 151, 167 

Riddle,  Dean  &  Co.  v.  B.  &  O.  R.  Co.  (1  I.  C.  C.,  372), 107 

Riddle,  Dean  &  Co  v.  B.  &  O.  R.  Co.  (1  I.  C.  C.,  608), 74 

Riddle,  Dean  &  Co.  v.  N.  Y.  L.  E.  &  W.  R.  Co.  (1  I.  C.  C.,  594), 74, 83 

Riddle,  Dean  &  Co.  v.  P.  &  L.  E.  R.  Co.  (1  I.  C.  C.,  374), 74 

Riddle,  Dean  &  Co.  v.  P.  &  L.  E.  R.  Co.  (1  I.  C.  C.,  490), 97, 117, 181, 182 

Right   of  Railway  Companies  and  Baggage   Express  Co.   Exchange   of 

Trans.,  re  (12  I.  C.  C.,  39),  74 

Rinker,  Tiernan  v.   (102  17.  S.,  123),   41 

Rising  v.  S.  F.  &  W.  R.  Co.  (5  I.  C.  C.,  120),  72,  83 

Ritchie,  Ins.  Co.  v.  (5  Wall.,  541),  18 

Robertson,  U.  S.  v.   (D.  C.,  Tenn.),   213 

Rock  Hill  Buggy  Co.  v.  S.  R.  Co.  (11  I.  C.  C.,  229), 81 

Robbins  v.  Taxing  District  (120  U.  S.,  489),   19, 41 

Rogers  Loc.  Works  v.  E.  R.  Co.  (20  N.  J.  Eq.,  379),  195 

Rogers,  U.  S.  v.    (D.  C.,  Tenn.),   213 

Romona  Oolithic  Stone  Co.  v.  V.  R.  Co.  (13  I.  C.  C.,  115), 83 

Royal  C.  &  C.  Co.  v.  S.  R.  Co.  (13  I.  C.  C.,  440),  46,  58, 122 

S.  &  C.  R.  Co.,  U.  S.  v.  (D.  C.,  Va.),  219 

S.  &  L.  V.  R.  Co.,  Barden  v.  (12  I.  C.  C.,  193), 168 

S.  A.  L.  R.  Co.,  Artz  v.  (11  I.  C.  C.,  458), 44 

S.  A.  L.  R.  Co.,  Randolph  L.  Co.  v.  (14  I.  C.  C.,  338), 184 

S.  A.  L.  R.  Co.,  Randolph  L.  Co.  v.  (1C.  C.  Docket,  1056), 325 

S.  A.  L.  R.  Co.  v.  R.  Com.  (155  Fed.,  792), 175 

S.  C  R.  Co.,  Loud  v.  (5  I.  C.  C.,  529), 32,  46,  72, 153 

S.  F.  &  W.  R,  Co.,  R.  Com.  v.  (5  L  C.  C.,  13), 74,  82, 83 


TABLE  OF  CASES  429 

Page 

S.  C.  K.  Co.,  E.  Com.  v.  (5  I.  C.  C.,  324), 72,  74,  75,  78,  80, 83,  84, 118 

S.  F.  &  W.  E.  Co.,  E.  Com.  v.  (5  I.  C.  C.,  13),  23,  25, 31, 35,  72 

S.  F.  &  W.  E.  Co.,  Eising  v.  (5  I.  C.  C.,  120), 72,  83 

S.  G.  &  L.  Co.  v.  A.  T.  &  S.  F.  E.  Co.  (14  I.  C.  C.,  364), 27 

8.  P.  Co.,  re  (155  Fed.,  1001),   60 

S.  P.  Co.,  Col.  F.  &  I.  Co.  v.  (6  I.  C.  C.,  488),  80, 137 

S.  P.  Co.,  Eiehenberg  v.   (14  I.  C.  C.,  250),  70,  206 

S.  P.  Co.,  I.  C.  C.  v.   (C.  C.,  Cal.),   237, 238 

S.  P.  Co.,  I.  C.  C.  v.  (74  Fed.,  42),  247 

S.  P.  Co.,  I.  C.  C.  v.  (137  Fed.,  606), 240 

S  P.  Co.,  Johnson  v.  (117  Fed.,  462),  54 

S.  P.  Co.,  Johnson  v.  (196  U.  S.,  1), 54 

S.  P.  Co.,  Lehmann  Higginson  &  Co.  v.  (4  I.  C.  C.,  1), 71,  75,  77,  80 

S.  P.  Co.,  Sanger  v.  (3  I.  C.  C.,  134), 71,  83 

S.  P.  Co.,  U.  S.  v.  (D.  C.,  Oreg.,  Apr.  1,  1907), 54 

S.  P.  Co.,  U.  S.  v.  (D.  C.,  Cal.), 216,  217,  218,  227,  228 

S.  P.  Co.  v.  I.  C.  C.,  (C.  C.,  Tex.), 206 

S.  P.  Co.  v.  I.  C.  C.   (C.  C.,  Cal.),  207 

S.  P.  Co.,  Western  Oreg.  L.  Mfrs.  Assn.  v.  (14  L  C.  C.,  61), 122,  207 

S.  P.  E.  Co.,  Gator  v.  (6  I.  C.  C.,  113),  84 

S.  P.  E.  Co.,  Consol  Forwarding  Co.  v.  (10  I.  C.  C.,  590), 81, 82 

S.  P.  E.  Co.,  Lehmann  Higginson  &  Co.  v.  (4  I.  C.  C.,  27), 82 

S.  P.  E.  Co.,  Martin  v.  (2  I.  C.  C.,  1),  74,  76,  79 

S.  P.  E.  Co.,  So.  Cal.  Fruit'  Ex.  v.  (9  I.  C.  C.,  182), 82 

S.  P.  E.  Co.,  re  (1  I.  C.  C.,  6),  137 

S.  E.,  C.  of  C.  v.  (10  I.  C.  C.,  Ill), 73,  81 

S.  E.  Co.,  Danville  v.   (8  I.  C.  C.,  409),  24, 78,  81 

S.  E.  Co.,  Farrar  v.  (11  I.  C.  C.,  640),  81, 134 

S.  E.  Co.,  Gardner  &  Clark  v.  (10  I.  C.  C.,  342), 73,  78, 81 

S.  E.  Co.,  Holmes  &  Co.  v.  (8  I.  C.  C.,  561),  130, 150 

S.  E.  Co.,  I.  C.  C.  v.  (117  Fed.,  741),  262 

S.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ala.), 237 

S.  E.  Co.,  L  C.  C.  v.  (C.  C.,  Va.  ),  237 

S.  E.  Co.,  McEae  T.  Co.  v.  (12  I.  C.  C.,  270),  168 

S.  E.  Co.,  McClelen  v.  (6  I.  C.  C.,  588), 80 

S.  E.  Co.,  Eeliance  Textile  &  Dye  Works  v.  (13  I.  C.  C.,  48), 40 

S.  E.  Co.,  Eoyal  C.  &  C.  Co.  v.  (13  L  C.  C.,  440), 46,58,122 

S.  E.  Co.,  Southern  P.  L.  Co.  v.  (14  L  C.  C.,  195),  113, 133 

S.  E.  Co.,  Tift  v.  (123  Fed.,  794), 22,  65, 194 

S.  E.  Co.,  Tift  v.   (133  Fed.,  789),  195 

S.  E.  Co.  Tift  v.   (138  Fed.,  753),   263 

S.  E.  Co.,  Tift  v.  (10  I.  C.  C.,  548),  61 

S.  E.  Co.,  U.  S.  v.  (135  Fed.,  122) , 54 

S.  E.  Co.,  Warren  Mfg.  Co.  v.  (12  I.  C.  C.,  381), 62 

St.  L.  &  S.  F.  E,  Co.,  Anthony  Salt  Co.  v.  (5  I.  C.  C.,  299), 72,  77,  80 

St.  L.  &  S.  F.  E.  Co.,  Ocheltree  G.  Co.  v.  (13  I.  C.  C.,  46), 153 

St.  L.  &  S.  F.  E.  Co.,  Texas  C.  P.  Co.  v.  (12  I.  C.  C.,  68),  139 

St.  L.  &  S.  F.  E.  Co.,  Pitts  v.  (10  I.  C.  C.,  684), 73 

St.  L.  &  S.  F.  E,  Co.,  U.  S.  v.  (D.  C.,  Mo.), 217 

St.  L.  A.  &  T.  E.  Co.,  Jackson  v.  (1  I.  C.  C.,  184), 140 

St.  L.  A.  &  T.  H.  E.  Co.,  Hezel  M.  Co.  v.  (5  I.  C.  C.,  57), 75 

St.  L.  I.  M.  &  S.  E.  Co.,  L.  E.  &  M,  E.  Co,  v.  (63  Fed.,  775), 66 


430  TABLE  OP  CASES 

Page 

St.  L.  I.  M.  &  S.  B.  Co.,  M.  P.  E.  Co.  and  Stith,  TL  8.  v.  (D.  C.,  Ark),  . .  221 

St.  L.  I.  M.  &  S.  E.  Co.,  Producers'  P.  Line  Co.  v.  (12  I.  C.  C.,  186),  ...  91 

St.  L.  I.  M.  &  S.  E.  Co.,  U.  S.  v.  (D.  C.,  Tenn.,  June  11,  1907), 55 

St.  L.  S.  W.  E.  Co.,  L.  E.  &  M.  E.  Co.  v.  (63  Fed.,  775), 170 

St.  L.  S.  W.  B.  Co.,  Eice  v.  (5  I.  C.  C.,  660),  76, 78,  84, 140 

St.  L.  E.  Co.,  Traer,  rec.  v.  (13  I.  C.  C.,  451), 114 

St.  P.  M.  &  M.  E.  Co.,  Holbrook  v.  (1  I.  C.  C.,  102), 151 

Safety  of  Employees  and  Travellers,  etc.,  re  (6  I.  C.  C.,  332), 55 

San  Bernardino  B.  of  T.  v.  A.  T.  &  S.  F.  E.  Co.  (4  I.  C.  C.,  104), 71, 

77,  80,  82,  84, 152 

Sanger  v.  S.  P.  C.   (3  I.  C.  C.,  134),  71, 83 

Satterlee,  Williams  v.  (20  App.  D.  C.,  393), 187 

Savery  &  Co.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (2  I.  C.  C.,  338), 64,  71,  74 

Savannah  Bu.  of  F.  &  T.  v.  C.  &  S.  E.  Co.  (7  I.  C.  C.,  601), 44,  72,  76,  78 

Savannah  Bu.  of  F.  &  T.  v.  L.  &  N.  E.  Co.  (8  I.  C.  C.,  377), 73,  78,  80, 151 

Sayward,  U.  S.  v.  (160  U.  S.,  493), 21 

S.  C.  v.  Gaillard  (101  U.  S.,  437),   18 

Schlemmer  v.  B.  P.  &  E.  Co.  (205  U.  S.,  1), 54 

Schofield  v.  L.  S.  &  M.  S.  E.  Co.  (2  I.  C.  C.,  90), 74,  76 

Scofield  v.  Eailway  (43  Ohio  St.,  571),  195 

Schirm,  U.  S.  v.  (D.  C.,  Gal.), 226 

Schurz,  U.  S.  v.   (102  U.  S.,  394),  203 

Scott,  U.  S.  v.   (D.  C.,  Ky.), 60 

Seaboard  E.  Co.,  U.  S.  ex  rel.  v.  (C.  C.,  Ala.), 204 

Shamberg  v.  D.  L.  &  W.  E.  Co.  (4  I.  C.  C.,  630), 74,  75,  77, 82 

Sharp,  U.  8.  v.  (D.  C.,  Nebr.),  213 

Shea  v.  Leisy  (85  Fed.,  245),  257 

Shelby  County  Taxing  Diet.,  Bobbins  v.  (120  U.  S.,  489), 41 

Sheldon  v.  Wabash  E.  Co.  (105  Fed.,  785),  234 

Shinkle  v.  L.  &  N.  E.  Co.  (62  Fed.,  690),  253 

Sheetman  v.  C.  &  N.  W.  B.  Co.  (13  I.  C.  C.,  167), 168 

Shine,  Hyde  v.   (199  U.  S.,  62),   233 

Shippers'  Union  of  P.  v.  A.  T.  &  S.  F.  B.  Co.  (9  I.  C.  C.,  250), 73,  78 

Shotter,  U.  S.  v.   (D.  C.,  Ga.),   215 

Sidman  v.  E.  &  D.  B.  Co.  (3  I.  C.  C.,  512),  75 

Slater,  Brown  v.  (23  App.  D.  C.,  51),  187 

Slater  v.  N.  P.  B,  Co.  (2  I.  C.  C.,  359),  74,  76, 102 

Smith  v.  Alabama  (124  U.  S.,  465),   194 

Smith  v.  Bingham   (3  HI.  App.,  65),  129 

Smith,  Freeborn  v.   (2  Wall.,  173),   18 

Smith  v.  N.  P.  E.  Co.   (1  I.  C.  C.,  208),  23,  74 

Smyth  v.  Ames    (169  U.  S.,  466),   175, 382 

So.  Cal.  Fruit  Ex.  v.  S.  P.  E.  Co.  (9  I.  C.  C.,  182), 82 

Society  of  Am.  Florists  v.  U.  S.  Exp.  Co.  (12  I.  C.  C.,  121), 139 

Southern  Exp.  Co.  v.  M.  &  L.  B.  Co.  (8  Fed.,  799), 195 

Southern  P.  &  G.  Co.  v.  L.  E.  &  W.  E.  Co.  (6  I.  C.  C.,  284), 46 

Southern  P.  L.  Co.  v.  S.  E.  Co.  (14  I.  C.  C.,  195), 113, 133 

Spain,  Oelrich  v.  (82  U.  S.,  211),  195 

Spartanburg  B.  of  T.  v.  B.  &  D.  E.  Co.  (2  I.  C.  C.,  304), 23, 121, 151 

Spillers  &  Co.  v.  L.  &  N.  E.  Co.  (8  I.  C.  C.,  364), 82 

Spokane  International,  Potlach  L.  Co.  v.,  209 

Spriggs,  U.  S.  v.  (D.  C.,  HL),  213 


TABLE  OF  CASES  431 

Page 

Spriggs  v.  B.  &  O.  E.  Co.  (8  I.  C.  C.,  443), 61,  62,  84 

Standard  L.  &  S.  Co.  v.  C.  V.  E.  Co.  (I.  C.  C.  Docket,  1650), 334 

Standard  Oil  Co.  of  N.  Y.  and  Vacuum  Oil  Co.,  U.  S.  v.  (D.  C.,  N.  Y.),          227 

Standard  Oil  Co.  of  N.  Y.,  U.  S.  v.  (D.  C.,  N.  Y.),  223,  227 

Standard  Oil  Co.,  U.  S.  v.  (D.  C.,  111.), 223,  224 

Standard  Oil  Co.,  U.  S.  v.  (D.  C.,  Tenn.),  217 

Standard  Oil  Co.  v.  Van  Elten  (107  U.  S.,  325),  171 

State,  Bartley  v.   (55  Nebr.,  294),   165 

State,  Epps  v.  (19  Ga.,  18),  165 

Stearns  S.  &  L.  Co.,  U.  S.  v.  (D.  C.,  Mich.),  227 

Stewart  v.  Morris   (89  Fed.,  290),   257 

Stickney  et  al.  v.  I.  C.  C.,  (C.  C.,  Minn.),  206 

Stickney  v.  I.  C.  C.    (C.  C.,  111.),    253 

Stickney  v.  I.  C.  C.  (C.  C.,  Minn.,  May,  1908) , 347,  372 

Stimson,  U.  S.  v.  (D.  C.,  Ind.),  212 

Stone  v.  D.  G.  H.  &  M.  E.  Co.  (3  L  C.  C.,  613),  153 

Stone  &  Garten  v.  D.  G.  H.  &  M.  E.  Co.  (3  I.  C.  C.,  613), 75,  80,  82 

Stowe-Fuller  Co.  v.  P.  E.  Co.  (12  I.  C.  C.,  215), 177 

Stubbs,  U.  S.  v.   (D.  C.,  La.),  214 

Suffern,  Hunt  &  Co.  v.  I.  D.  &  W.  E.  Co.  (7  I.  C.  C.,  225), 152 

Sullivan  v.  D.  C.  (19  App.  D.  C.,  210), 187 

Summy,  Washington  Market  Co.  v.  (3  MaeA.,  59),  187 

Sunderland  v.  C.  E.  L  &  P.  E.  Co.  (158  Fed.,  877),  210 

Swift  &  Co.,  U.  S.  v.  (D.  C.,  Mo.), 218 

Swift,  TJ.  S.  v.  (D.  C.,  111.),  213 

Swift  v.  P.  &  E.  E.  Co.  (58  Fed.,  858),  22, 194,  233,  234 

Squire  &  Co.  v.  M.  C.  E.  Co.  (4  L  C.  C.,  611), 77 

T.  &  P.  E.  Co.,  Abilene  C.  O.  Co.  v.  (204  U.  S.,  426), 20,  21,  208 

T.  &  P.  E.  Co.,  Am.  Live  Stock  Assn.  v.  (12  I.  C.  C.,  32), 168 

T.  &  P.  E.  Co.,  Dallas  Frt.  Bu.  v.  (8  I.  C.  C.,  33), 80 

T.  &  P.  E.  Co.,  Hope  C.  O.  Co.  v.  (10  I.  C.  C.,  696),  82 

T.  &  P.  E.  Co.,  I.  C.  C.  v.  (57  Fed.,  948),  173,  247 

T.  &  P.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  N.  Y.),  236 

T.  &  P.  E.  Co.,  Lehmann-Higginson  &  Co.  v.  (5  I.  C.  C.,  44), 82 

T.  &  P.  E.  Co.,  Phelps  v.  (6  I.  C.  C.,  36),  82 

T.  &  P.  E.  Co.,  U.  P.  E.  Co.  v.  (31  Fed.,  862), 171 

T.  &  P.  E.  Co.  v.  Cox  (145  U.  S.,  593),  254 

T.  &  P.  E.  Co.  v.  I.  C.  C.   (162  TJ.  S.,  197),   16, 

34,  37,  38, 39,  64,  65,  66, 119, 165, 171, 172, 173,  247,  266 

T.  &  P.  E.  Co.  v.  Johnson  (151  U.  S.,  81),  254 

T.  A.  A.  &  N.  M.  E.  Co.  v.  P.  Co.  (54  Fed.,  746), 193, 195 

T.  A.  A.  &  N.  M.  E.  Co.  v.  P.  Co.  (54  Fed.,  730), 192, 194 

Tariffs  &  Classifications  A.  &  W.  P.  E.  Co.,  re  (3  L  C.  C.,  19),  . .  .24,  71,  75,  77,  82 

Tariffs  &  Classifications  of  G.  T.  E.  Co.,  re  (3  I.  C.  C.,  89), 83 

Tariffs  of  C.  &  W.  E.  Co.,  re  (1  I.  C.  C.,  626),  79 

Tariffs  of  Transcontinental  Lines,  re  (2  I.  C.  C.,  324), 76,  81 

Tariffs  on  Export  and  Import  Traffic,  re  (10  I.  C.  C.,  55), 39 

Taxing  District,  Bobbins  v.   (120  TJ.  S.,  489),   19 

Tecumseh  Celery  Co.  v.  C.  ,T.  &  M.  E.  Co.  (5  I.  C.  C.,  663), 72,  76,  83,  84 

Terminal  E.  Assn.,  Eatican  v.  (114  Fed.,  666),  94,  238 

Texas  C.  P.  Co.  v.  St.  L.  &  S.  F.  E.  Co.  (12  I.  C.  C.,  68), 139 


432  TABLE  OF  CASES 

Page 

Thatcher  v.  D.  &  H.  C.  Co.  (1  I.  C.  C.,  152), 79 

Thomas  and  Taggart,  U.  S.  v.  (D.  C.,  Mo.),  229 

Thompson  L.  Co.  v.  I.  C.  E.  Co.  (13  I.  C.  C.,  657), 133 

Thompson  v.  P.  E.  Co.  (10  I.  C.  C.,  640),  76,  79, 113 

Thompson,  U.  S.  v.   (D.  C.,  111.),   214 

Thome  and  Sargent,  U.  S.  v.  (D.  C.,  La.),  214 

Through  Eoutes  and  Bates,  re  (12  I.  C.  C.,  163),   24,  25, 33, 168 

Thurber  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (3  I.  C.  C.,  473), 71, 75,  77 

Tiernan  v.  Binker  (102  U.  S.,  123),  41 

Tift,  S.  E.  Co.  v.   (138  Fed.,  753),   263 

Tift  v.  S.  E.  Co.  (10  I.  C.  C.,  548), 61 

Tift  v.  S.  E.  Co.   (123  Fed.,  789),  22,  65, 194, 195 

Toledo  Ice  &  Coal  Co.,  U.  S.  v.  (D.  C.,  Ohio),  225 

Toledo  P.  Ex.  v.  L.  8.  &  M.  S.  E.  Co.  (5  I.  C.  G.,  166), 16,  75,  77, 144, 153 

Tompkins,  C.  M.  &  St.  P.  B.  Co.  v.  (167  U.  S.,  171), 385 

Tozer,  U.  S.  v.  (37  Fed.,  635),   210 

Tozer,  U.  S.  v.  (D.  C.,  Mo.), 212 

Traer,  rec.,  v.  C.  &  A.  B.  Co.  (13  I.  C.  C.,  451), 58, 206 

Traer,  rec.,  v.  C.  B.  &  Q.  E.  Co.  (14  I.  C.  C.,  165),  68 

Traer,  rec.,  v.  C.  P.  &  St.  L.  E.  Co.  (13  I.  C.  C.,  451), 114 

Traer,  rec.,  v.  I.  C.  E.  Co.  (13  I.  C.  C.,  451), 128 

Traffics,  Classifications  of  A.  &  W.  P.  E.  Co.,  re  (3  I.  C.  C.,  19), 79 

Transcontinental  Frt.  Bu.,  Burgess  v.  (13  I.  C.  C.,  668), 130, 132, 133, 135 

Trans-Missouri  Assn.,  U.  S.  v.  (166  U.  S.,  290),  60 

Transportation  of  Coal  and  Mine  Supplies  (10  I.  C.  C.,  473), 76,  82 

Transportation  of  Coal  by  L.  &  N.  B.  Co.  re  (51.  C.  C.,  466), 82 

Transportation  of  Immigrants,  re  (10  I.  C.  C.,  13), 81 

Transportation  of  Salt,  re  (10  I.  C.  C.,  1), 78 

Transportation  of  Salt,  re  (10  I.  C.  C.,  148), 76 

Troy  B.  of  T.  v.  A.  M.  E.  Co.  (6  I.  C.  C.,  1), 80,  82 

T.  E.  Assn.  of  St.  L.,  U.  S.  v.  (D.  C.,  Mo.,  June  3,  1908), 55 

Truck  Farmers'  Assn.,  v.  N.  E.  B.  Co.  (6  I.  C.  C.,  295), 72 

Tucker  v.  U.  S.   (151  U.  S.,  164),   161 

Tyler,  Hale  v.   (104  Fed.,  761),   246 

U.  &  D.  E.  Co.,  Brockway  v.  (8  I.  C.  C.,  21),  76 

TTintah  B.  Co.,  Am.  Asphalt  Assn.  v.  (13  I.  C.  C.,  196), 169, 175, 176 

TT.  P.  B.  Co.,  Leonard  v.  (1  I.  C.  C.,  185),  151 

Ulrich  &  Williams  v.  L.  S.  &  M.  S.  E.  Co.  (9  I.  C.  C.,  495), 73,  78,  81 

Underbilling,  re  (1  I.  C.  C.,  633),   76 

Union,  etc.,  Co.,  Connecticut,  etc.,  Ins.  Co.  v.  (112  U.  S.,  255), 257 

Union  Stock  Yards,  U.  S.  v.  (D.  C.,  Nebr.,  Feb.  21,  1908), 55 

Union  Terminal  E.  Co.  v.  E.  Com.  (54  Kans.,  352),  184 

Unlawful  Bates  and  Practices,  re  (7  I.  C.  C.,  33), 76 

U.  S.  ex  rel.  Coffman  v.  B.  &  W.  B.  Co.  (109  Fed.,  821), 58 

U.  S.  ex  rel.  Kingman  v.  W.  Va.  N.  B.  Co.  (125  Fed.,  252), 58 

U.  S.  ex  rel.  Pitcairn  v.  B.  &  O.  E.  Co.  (154  Fed.,  108), 58 

U.  S.  ex  rel.  v.  B.  &  M.  Co.  (C.  C.,  Mass.),  205 

U.  S.  ex  rel.  v.  B.  Z.  &  Co.  (C.  C.,  Ohio),  205 

U.  S.  ex  rel.  v.  C.  K.  &  S.  B.  Co.  (C.  C.,  Mich.),  205 

U.  S.  ex  rel.  v.  D.  &  H.  Co.  (C.  C.,  Mass.),  205 

U.  S.  ex  rel.  v.  L.  S.  &  M.  S.  E.  Co.  (197  U.  S.,  536), 48 


TABLE  OP  CASES  433 

Page 

U.  S.  ex  rel.  v.  L.  S.  &  M.  S.  E.  Co.  (C.  C.,  Ohio), 205 

U.  S.  ex  rel.  v.  M.  P.  E.  Co.  (C.  C.,  Kans.), 243 

U.  S.  ex  rel.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (C.  C.,  N.  Y.), 205 

U.  S.  ex  rel.  v.  N.  Y.  &  T.  S.  S.  Co.  (C.  C.,  N.  Y.), 226 

U.  S.  ex  rel.  v.  Seaboard  E.  Co.  (C.  C.,  Ala.), '..  204 

U.  S.  ex  rel.  W.  V.  N.  E.  Co.  v.  (134  Fed.,  198), 204 

U.  S.,  Alexander  v.  (201  TJ.  S.,  117), 163 

U.  S.,  Armour  P.  Co.  v.  (209  U.  S.,  56),  34, 38,  231 

U.  S.,  Burton  v.  (202  U.  S.,  344), 232 

U.  S.,  Board  of  Liquidation  v.  (108  Fed.,  689),  203 

U.  S.,  Davis  v.  (43  C.  C.  A.,  448;  104  Fed.,  136), 232 

U.  S.,  The  Durousseau  v.  (6  Cranch,  307),  70 

U.  S.,  Harriman  v.   (Sup.  Ct.,  Oct.,  1908),  vi,  24, 179 

U.  S.,  Hellwig  v.  (188  U.  S.,  605),  202 

U.  S.,  Hoiles  v.  (3  MacA.,  370),  187 

U.   S.,  Kendall  v.    (12  Pet.,  524),   203 

U.  S.,  Moore  v.  (85  Fed.,  465),  18 

U.  S.,  Moore  v.  (91  U.  S.,  270), 144 

U.  S.,  M.  P.  E.  Co.  v.  (189  TJ.  S.,  274), 47, 49, 192,  200 

U.  S.,  Nelson  v.   (201  U.  S.,  92),  163 

U.  S.,  Northern  Securities  Co.  v.  (193  U.  S.,  197), 61 

U.  S.,  Tucker  v.  (151  U.  S.,  164),  161 

U.  S.,  Wiborg  v.  (163  U.  S.,  632), 119 

U.  S.,  Yeaton,  v.   (5  Cranch,  281),  18 

U.  S.  v.  A.  A.  E.  Co.  (D.  C.,  Ohio),  225 

U.  S.  v.  A.  T.  &  S.  F.  E.  Co.  (D.  C.,  111.), 215 

TJ.  S.  v.  A.  T.  &  S.  F.  E.  Co.  (C.  C.  App.,  8th  Circuit,  Aug.  22,  1908),  . .  55 

U.  S.  v.  A.  T.  &  S.  F.  E.  E.  Co.  (D.  C.,  Ariz.,  July  17,  1908), 55 

U.  S.  v.  A.  T.  &  S.  F.  E.  Co.  (D.  C.,  Cal.),  226 

U.  S.  v.  A.  T.  &  S.  F.  E.  Co.  (D.  C.,  Cal.,  June  6,  1908), 55 

U.  S.  v.  A.  T.  &  S.  F.  E.  Co.  (150  Fed.,  442),  54 

U.  S.  v.  A.  T.  &  S.  F.  E.  Co.  (C.  C.,  Mo.), 243 

U.  S.  v.  A.  T.  &  S.  F.  E.  Co.  (D.  C.,  N.  Mex.), 220 

U.  S.  v.  C.  &  A.  E.  Co.  et  al.  (D.  C.,  Mo.),  222 

U.  S.  v.  C.  &  A.  E.  Co.  (D.  C.,  Mo.), 219 

U.  S.  v.  C.  &  A.  E.  Co.,  et  al.  (D.  C.,  111.),  221 

U.  S.  v.  C.  &  N.  W.  E.  Co.  (D.  C.  Colo.,  Nov.  25,  1907), 55 

U.  S.  v.  C.  &  N.  W.  E.  Co.  (C.  C.,  111.), 243 

U.  S.  v.  C.  &  O.  E.  Co.  (C.  C.,  Va.), 221,  243 

U.  S.  v.  C.  B.  &  Q.  E.  Co.  (D.  C.,  Mo.), 221 

U.  S.  v.  C.  B.  &  Q.  E.  Co.  (D.  C.,  111.), 219 

U.  S.  v.  C.  C.  C.  &  St.  L.  E.  Co.  (D.  C.,  Ohio), 212 

U.  S.  v.  C.  G.  W.  E.  Co.  (D.  C.,  Iowa,  May  6,  1908), 55 

U.  S.  v.  C.  H.  &  D.  E.  Co.  (D.  C.,  Ohio,  June  24,  1908), 55 

U.  S.  v.  C.  I.  &  L.  E.  Co.  (C.  C.,  111.),  244 

TJ.  S.  v.  C.  M.  &  St.  P.  E.  Co.  (149  Fed.,  486), 54 

TJ.  S.  v.  C.  M.  &  St.  P.  E.  Co.  (D.  C.,  N.  Y.), 226 

TJ.  S.  v.  C.  M.  &  St.  P.  E.  Co.  (D.  C.,  Mo.), 219 

TJ.  S.  v.  C.  P.  &  St.  L.  E.  Co.  (143  Fed.,  353),  54 

TJ.  S.  v.  C.  E.  I.  &  P.  E.  Co.  (D.  C.,  Mo.,  Feb.  21,  1908), 55 

TJ.  S.  v.  C.  E.  I  &  P.  E.  Co.  (D.  C.,  N.  Y.), 226 

TJ.  S.  v.  C.  V.  E.  Co.  (D.  C.,  N.  Y.), 236 


434  TABLE  OF  CASES 


U.  S.  v.  C.  St.  P.,  M.  &  O.  E  Co.  et  al.  (D.  C.,  Minn.),  ...............  224 

U.  8.  v.  C.  C.  &  S.  E.  Co.  (D.  C.,  Ohio),  .............................  212 

U.  S.  v.  D.  &  H.  Co.  (D.  C.,  N.  Y.),  ................................  220 

U.  S.  v.  D.  &  E.  G.  Co.  (C.  C.  A.,  8th  circuit,  Aug.  22,  1908),  .........  55 

U.  S.  v.  D.  L.  &  W.  B.  Co.  (40  Fed.,  101),  ...........................  204 

U.  S.  v.  D.  L.  &  W.  E.  Co.  (152  Fed.,  269),  ........................  34 

U.  S.  v.  D.  L.  &  W.  E.  Co.  (C.  C.,  N.  Y.),  ..........................  222 

U.  S.  v.  D.  E.  Co.  (I.  C.  C.  Docket,  1699),  ..........................  113 

TJ.  S.  v.  E.  P.  &  S.  W.  E.  Co.  (D.  C.,  Ariz.,  Jan.  3,  1907),  .............  54 

U.  S.  v.  E.  P.  &  8.  W.  E.  Co.  (D.  C.  Tex.,  Apr.  8,  1907),  ............  54 

U.  S.  v.  G.  N.  E.  Co.  (D.  C.,  Pa.),  .................................  218 

U.  S.  v.  G.  N.  E.  Co.  (145  Fed.,  438),  .............................  54 

TJ.  S.  v.  G.  N.  E.  Co.  (150  Fed.,  229,  ...............................  54 

U.  S.  v.  G.  N.  E.  Co.  et  al.  (D.  C.,  Minn.),  ..........................  224,  225 

U.  S.  v.  G.  N.  E.  Co.  (D.  C.,  N.  Y.),  ..............................  226 

U.  S.  v.  Harper  (P.  Ct.,  D.  C.),  ....................................  10 

U.  S.  v.  I.  C.  E.  Co.  (C.  C.,  La.),  ...................................  217 

U.  S.  v.  I.  C.  E.  Co.  (D.  C.,  Tenn.),  ................................  215 

U.  S.  v.  I.  C.  E.  Co.  (D.  C.,  Ky.,  Nov.  1,  1907),  ......................  55 

U.  S.  v.  I.  H.  E.  Co.  (D.  C.  111.,  Nov.  20,  1906),  .....................  54 

U.  S.  v.  I.  T.  E.  Co.  (D.  C.,  HI.),  ..................................  218 

U.  S.  v.  L.  &  N.  E.  Co.  (D.  C.,  Ky.),  ................................  215 

U.  S.  v.  L.  V.  E.  Co.  (D.  C.,  Pa.,  Mar.  17,  1908),  ...................  55 

TJ.  S.  v.  L.  S.  &  M.  S.  E.  Co.  (D.  C.,  Ohio),  .........................  212 

U.  S.  v.  M.  &  St.  L.  E.  Co.  &  Kenny  (D.  C.,  Minn.),  .................  225 

TJ.  S.  v.  M.  C.  E.  Co.  (D.  C.,  EL),  .................................  212 

U.  S.  v.  M.  K.  &  T.  E.  Co.  (D.  C.,  Mo.),  ............................  221 

IT.  S.  v.  M.  P.  E.  Co.  (C.  C.,  Mo.),  .................................  205 

U.  S.  v.  M.  P.  E.  Co.  (65  Fed.,  909),  ...........................  24,  48,  200,  262 

U.  S.  v.  M.  P.  E.  Co.  (C.  C.,  Mo.),  .................................  243 

TJ.  S.  v.  N.  Y.  C,  &  H.  E.  E.  Co.  (D.  C.,  N.  Y.),  .....................  215,  220 

TJ.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (C.  C.,  N.  Y.),  .....................  222 

TJ.  S.  v.  N.  Y.  C.  &  H.  E.  E.,  Guilford  &  Pomeroy  (C.  C.,  N.  Y.),  ......  222 

TJ.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  &  Guilford  (D.  C.,  N.  Y.),  ...........  220 

TJ.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (D.  C.,  N.  Y.),  .....................  220 

TJ.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (D.  C.,  N.  Y.),  .....................  227 

TJ.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  &  P.  E.  Co.  (D.  C.,  N.  Y.),  ...........  227 

U.  S.  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (D.  C.,  N.  Y.),  .....................  227 

TJ.  S.  v.  N.  Y.  C.  &  St.  L.  E.  Co.  (D.  C.,  111.),  .......................  216 

TJ.  S.  v.  N.  Y.  C.  &  St.  L.  E.  Co.,  &  L.  V.  E.  Co.  (D.  C.,  111.),  .........  216 

TJ.  S.  v.  N.  Y.  L.  E.  &  W.  E.  Co.  (D.  C.,  Ohio),  ......................  212 

TJ.  S.  v.  N.  P.  T.  Co.  (144  Fed.,  861),  .............................  54 

U.  S.  v.  N.  Y.  O.  &  W.  E.  Co.  (D.  C.,  N.  Y.),  .......................  226 

TJ.  S.  v.  O.  S.  L.  E.  Co.  (D.  C.,  Idaho,  June  4,  1908),  ................  55 

U.  S.  v.  P.  C.  (D.  C.,  Gal.),  .......................................  216 

TJ.  S.  v.  P.  C.  C.  &  St.  L.  E.  Co.  (143  Fed.,  360),  ....................  54 

TJ.  S.  v.  P.  C.  E.  Co.  (D.  C.,  Cal.,  June  13,  1908),  ...................  55 

TJ.  S.  v.  P.  E.  Co.  (D.  C.,  Pa.,  Mar.  18,  1908),  .......................  55 

TJ.  S.  v.  P.  &  E.  E.  Co.  (D.  C.,  Pa.,  Mar.  17,  1908),  ..................  55 

TJ.  S.  v.  N.  P.  E.  Co.  (120  Fed.,  546),  ..............................  53 

TJ.  S.  v.  P.  E.  Co.  (D.  C.,  N.  Y.),  ..................................  223,  227 

U.  S.  v.  S.  &  C.  E.  Co.  (D.  C.,  Va.),  ...............................  219 


TABLE  OF  CASES  435 

Page 

TJ.  S.  v.  S.  P.  Co.  (D.  C.,  Ore.,  Apr.  1,  1907), 54 

U.  S.  v.  S.  P.  Co.   (D.  C.,  Cal.),   216,  217,  218,  228 

TJ.  S.  v.  S.  E.  Co.  (135  Fed.,  122),  54 

U  S.  v.  St.  L.  I.  M.  &  S.  E.  Co.  (D.  C.,  Term.,  June  11,  1907), 55 

U.  S.  v.  St.  L.,  I.  M.  &  S.  E.  Co.  et  al.  (D.  C.,  Ark.), 221 

U.  S.  v.  St.  L.  &  S.  F.  E.  Co.  (D.  C.,  Mo.), 217 

U.  S.  v.  W.  &  A.  E.  Co.  (D.  C.,  Ga.), 215 

U.  S.  v.  W.  &  L.  E.  E.  Co.  (D.  C.,  Ohio,  June  16,  1908), 55 

U.  S.  v.  W.  C.  E.  Co.  et  al.  (D.  C.,  Minn.),  225 

U.  S.  v.  W.  E.  Co.  (D.  C.,  111.,  Nov.  19,  1907), 55 

TJ.  S.  v.  Agel  and  Levin  (D.  C.,  Vt.),  217 

U.  S.  v.  American  Sugar  Eefining  Co.  et  al.  (C.  C.,  N.  Y.), 222,  223 

U.  S.  v.  American  Sugar  Eefining  Co.  (D.  C.,  N.  Y.),  220,  222 

U.  S.  v.  American  Sugar  Eefining  Co.,  et  al.  (D.  C.,  N.  Y.), 220 

IT.  S.  v.  Ames-Brooks  Co.  (D.  C.,  Minn.),  225 

U.  S.  v.  Armour  &  Co.  (142  Fed.,  808), 161, 163 

U.  S.  v.  Armour  P.  Co.  (D.  C.,  Mo.), 219 

U.  S.  v.  Arredondo  (6  Pet.,  709),  15 

U.  S.  v.  Ault  (D.  C.,  Tex.),  215 

U.  S.  v.  B.  &  O.  E.  Co.  (D.  C.,  W.  Va.),  228 

U.  S.  v.  Babcock  (3  Dillon  (C.  C.),  566),  148 

U.  S.  v.  Belknap  (D.  C.,  Tex.),  215 

U.  S.  v.  Bennett  (D.  C.,  Ohio),  226 

U.  S.  v.  Belt  E.  Co.  (161  Fed.,  — ),  55 

TJ.  S.  v.  Boisdore's  Heirs  (8  How.,  121),  18 

TJ.  S.  v.  A.  Booth  &  Co.   (D.  C.,  111.),   216 

U.  S.  v.  Bosley  (D.  C.,  Va.), 220 

U.  S.  v.  Boyer  (85  Fed.,  425), 41 

U.  S.  v.  Brine  (D.  C.,  Ohio),  261 

U.  S.  v.  Brooklyn  C.  Co.  (C.  C.,  N.  Y.),  222 

U.  S.  v.  Buerger  (D.  C.,  Wis.),  214 

U.  S.  v.  Bunch  (D.  C.,  Ark.),  221 

U.  S.  v.  Calder  (D.  C.,  Wash.),  213 

U.  S.  v.  Cal.  Pine  B.  &  L.  Co.  (D.  C.,  Cal.),  228 

U.  S.  v.  Camden  Iron  Works  (150  Fed.,  216),  33,  228 

U.  S.  v.  Campbell  (D.  C.,  Pa.),   218 

U.  S.  v.  Capdevielle  (118  Fed.,  809), 203 

U.  S.  v.  Capps  (D.  C.,  Ga.),  215 

U.  S.  v.  Chapman  &  Dewey  L.  Co.  (D.  C.,  Mo.), 217 

U.  S.  v.  Clark   (D.  C.,  S.  C.),   221 

U.  S.  v.  Colo.  F.  &  I.  Co.  (D.  C.,  N.  Mex.), 220 

U.  S.  v.  Crane  (D.  C.,  Mo.),   213 

U.  S.  v.  Crosby  (D.  C.,  Mo.), 219 

U.  S.  v.  Cudahy  P.  Co.  (D.  C.,  Mo.),  219 

TJ.  S.  v.  De  Coursey  (D.  C.,  N.  Y.),   214 

U.  S.  v.  Devereaux  Co.    (D.  C.,  Minn.),   224 

TJ.  S.  v.  Dick  and  Blair  (D.  C.,  Pa.),  214 

TJ.  S.  v.  Diver  (D.  C.,  Pa.),  218 

TJ.  S.  v.  Dorr  (D.  C.,  Tenn.),  213 

U.  S.  v.  Duluth-Superior  M.  Co.  (D.  C.,  Minn.),  225 

U.  S.  v.  Edmundson  (D.  C.,  Mo.),   212 

U.  S.  v.  Egan  (D.  C.,  Ill),  212 


436  TABLE  OF  CASES 

Page 

U.  S.  v.  Egan  (D.  C.,  Minn.),   212 

U.  8.  v.  Farrell  (D.  C.,  Nebr.),  213 

U.  8.  v.  Fell  (D.  C.,  111.), 213 

U.  8.  v.  Ferreira  (13  How.,  40), 234 

U.  8.  v.  Field  (D.  C.,  Mo.), 213 

U.  8.  v.  Finnenich  (D.  C.,  111.), 213 

U.  8.  v.  Fowkes  (D.  C.,  Mo.),  213 

U.  8.  v.  Fraser  and  Wight  (D.  C.,  Pa.),  213,  214 

IT.  8.  v.  Gay  Mfg.  Co.  (D.  C.,  Va.), 219 

U.  8.  v.  Geddes  (D.  C.,  Ohio,  Aug.  13,  1903), 54 

U.  8.  v.  Geddes  (131  Fed.,  452),   54 

U.  8.  v.  Gilbert  (C.  C.,  Va.), 221 

U.  8.  v.  Gore  and  Kabinovitz  (D.  C.,  W.  Va.), 217 

U.  8.  v.  Guilford  et  al.  (D.  C.,  N.  Y.), 229 

U.  8.  v.  Grand  Canyon  L.  and  C.  Co.  (D.  C.,  CaL), 226 

U.  8.  v.  Hanley  &  Eeinhart  (D.  C.,  111.), 214 

U.  8.  v.  Hanley   (71  Fed.,  672),   65, 172,  210 

U.  8.  v.  Harrahan  (D.  C.,  Tenn.),  215 

TJ.  8.  v.  Hartley   (D.  C.,  Mo.),   225 

U.  8.  v.  Howell  (56  Fed.,  21),  210 

U.  8.  v.  Howell  (D.  C.,  Mo.), 213 

TL  8.  v.  Hudson  (7  Cranch,  32), 194 

IT.  8.  v.  Huntington   (D.  C.,  Cal.),   214 

IT.  8.  v.  I1L  Glass  Company  and  I.  T.  B.  Co.  (D.  C.,  HI.), 221 

U.  8.  v.  James  (60  Fed.,  257),  162 

U.  8.  v.  Jenkins  (D.  C.,  HI.), 214 

IT.  8.  v.  Johnson  (D.  C.,  EL),   212 

IT.  8.  v.  Johnston  (C.  C.,  Va.),  221 

U.  8.  v.  Joint  Traffic  Assn.  (171  U.  S.,  505), 196 

U.  S.  v.  Judd  and  Watkins  (D.  C.,  Mo.),  214 

IT.  S.  v.  Kehlor  (D.  C.,  EL), 213 

IT.  S.  v.  Keyser  (D.  C.,  Tenn.) ,  213 

IT.  S.  v.  Knight   (D.   C.,  111.),    213 

U.  S.  v.  Knight   (D.  C.,  Mo.),   213 

U.  S.  v.  Knight  (156  U.  S.,  13),  41 

U.  S.  v.  Kresky  (D.  C.,  Mo.), 229 

U.  S.  v.  Kresky  and  McGowan  (D.  C.,  Mo.),  229 

U.  8.  v.  Lake  (D.  C.,  Pa.),   218 

IT.  S.  v.  McCaull-Dinsmore  Co.  (D.  C.  Minn.),   224 

U.  S.  v.  McCormick   (D.  C.  Md.),    212 

IT.  S.  v.  Means  (D.  C.,  Pa.),  213,  214 

U.  S.  v.  Mellen  (D.  C.,  Kans.),  228 

IT.  S.  v.  Miller  (D.  C.,  HI.), 212 

U.  S.  v.  Mills  (8  App.  D.  C.,  500), 187 

IT.  S.  v.  MiL  Eef.  T.  Co.  (C.  C.  Wis.),  243 

IT.  S.  v.  Morris  (D.  C.,  111.),  214 

IT.  S.  v.  Morris  (14  Pet.,  464),   119 

IT.  S.  v.  Morsman  (42  Fed.,  488), 33,  210 

IT.  S.  v.  Morsman  (D.  C.,  Mo.) ,  212 

IT.  S.  v.  Mutual  T.  Co.  (D.  C.,  Pa.),  218, 228 

IT.  S.  v.  Neiburg  (D.  C.,  Vt.), 217 

IT.  S.  v.  Nelson  Morris  &  Co.  (D.  C.,  Mo.),  219 


TABLE  OF  CASES  .         437 

Page 

TJ.  S.  v.  Nistas  (D.  C.,  Mo.),  221 

TI.  S.  v.  Nitas,  et  al.  (D.  C.,  Mo.),  229 

U.  S.  v.  Northern  S.  S.  Co.  (C.  C.,  N.  Y.), ' 223 

TJ.  8.  v.  Pacific  Mail  S.  S.  Co.  (D.  C.,  Cal.), 216 

U.  S.  v.  Pap7  and  Menzies  (D.  C.,  Fla.), 214 

U.  S.  v.  Patriarche  and  Stearns  S.  &  L.  Co.  (D.  C.,  Mich.), 220 

U.  S.  v.  Pa.  Fruit  Co.  (D.  C.,  Cal.), 228 

U.  S.  v.  Pennington  &  Pleasants  (D.  C.,  Fla.),  214 

U.  S.  v.  Price    (D.  C.,  Ky.),   214,215,228 

U.  S.  v.  Price  &  Wells  (D.  C.,  Ky.),  229 

U.  S.  v.  Eeid  (D.  C.,  Kans.), 214 

U.  S.  v.  Eobertson   (D.  C.,  Tenn.),   213 

U.  S.  v.  Eogers  (D.  C.,  Tenn.),  213 

U.  S.  v.  Sayward  (160  U.  S.,  493),  21 

U.  S.  v.  Schirrn   (D.  C.,  Cal.),   226 

U.  S.  v.  Sehurz  (102  U.  S.,  394), 203 

U.  S.  v.  Scott   (D.  C.,  Ky.),   60 

U.  S.  v.  Sharp  (D.  C.,  Neb.), 213 

U.  S.  v.  Shotter   (D.  C.,  Ga.),   215 

U.  S.  v.  Spriggs  (D.  C.,  111.), 213 

U.  S.  v.  Standard  Oil  Co.  (D.  C.,  Tenn.), 217 

U.  S.  v.  Standard  Oil  Co.  of  New  York  (D.  C.,  N.  Y.), 223, 227 

U.  S.  v.  Standard  Oil  Co.  (D.  C.,  111.),  223,  224 

U.  S.  v.  Standard  Oil  Co.  of  N.  Y.  &  Vacuum  Oil  Co.  (D.  C.,  N.  Y.),  ...  227 

TI.  S.  v.  Stearns  S.  &  L.  Co.  (D.  C.,  Mich.),  227 

U.  S.  v.  Stimson  (D.  C.,  Ind.),  212 

TI.  S.  v.  Stubbs  (D.  C.,  La.),   214 

TI.  S.  v.  Swift  &  Co.  (D.  C.,  Mo.), 218 

TT.  S.  v.  Swift  (D.  C.,  111.),  213 

U.  S.  v.  Thomas  &  Taggart  (D.  C.,  Mo.),  229 

TI.  S.  v.  Thompson   (D.  C.,  HI.),   214 

TI.  S.  v.  Thome  &  Sargent  (D.  C.,  La.), 214 

TI.  S.  v.  Toledo  Ice  &  Coal  Co.  (D.  C.,  Ohio), 225 

TI.  S.  v.  Tozer   (37  Fed.,  635),   210 

TI.  S.  v.  Tozer  (D.  C.,  Mo.), 212 

TI.  S.  v.  T.  E.  Assn.  of  St.  L.  (D.  C.,  Mo.,  June  3,  1908), 55 

TI.  S.  v.  Trans.-Mo.  Assn.  (166  TI.  S.,  290),  60 

TI.  S.  v.  Union  Stock  Yards  of  Omaha  (D.  C.,  Nebr.,  Feb.  21,  1908), 55 

TI.  S.  v.  TI.  P.  Coal  Co.,  et  al.  (D.  C.,  Utah), 215 

U.  S.  v.  U.  P.  E.  Co.  (91  U.  S.,  72),  66 

U.  S.  v.  U.  S.  Exp.  Co.  (C.  C.,  111.), 243 

U.  S.  v.  Vacuum  Oil  Co.    (D.  C.,  N.  Y.),   223, 226,  227 

U.  S.  v.  Moore  et  al.  (C.  C.,  Va.),  218 

U.  S.  v.  Waters-Peirce  Oil  Co.  (D.  C.,  Mo.),  225 

U.  S.  v.  Weil  (D.  C.,  111.),  228 

U.  S.  v.  Western  Transit  Co.  (D.  C.,  N.  Y.),  226 

U.  S.  v.  Western  Transit  Co.  (C.  C.,  N.  Y.),  222 

U.  S.  v.  Whitcomb   (D.  C.,  Minn.),   215 

U.  S.  v.  Williams   (D.  C.,  Ala.),   221 

U.  S.  v.  Wood  (145  Fed.,  504), 33 

U.  S.  v.  E.  D.  Wood  &  Co.  (D.  C.,  Pa.), 218 

U.  S.  v.  Wykoff  (D.  C.,  Mo.),  213 


438  TABLE  OP  CASES 

Page 

U.  8.  v.  Y.  &  M.  V.  R.  Co.  (C.  C.,  La.), 217 

TJ.  S.  v.  Zorn  (D.  C.,  Ky.),  218 

U.  P.  Co.  et  al.  U.  S.  v.  (D.  C.,  Utah), 215 

U.  P.  E.  Co.,  Evans  v.  (6  I.  C.  C.,  520), 55, 114, 118,  255 

TJ.  P.  E.  Co.,  Leonard  v.  (1  I.  C.  C.,  185), 140 

U.  P.  E.  Co.,  Lincoln  Creamery  v.  (5  I.  C.  C.,  156), 72, 77 

U.  P.  B.  Co.,  Matthews  v.  (5  I.  C.  C.,  299),  72,  77,  80 

U.  P.  E.  Co.,  U.  S.  v.  (91  U.  S.,  72),  66 

U.  P.  E.  Co.  v.  Eeed  (80  Fed.,  239), 257 

U.  P.  E.  Co.  v.  T.  &  P.  E.  Co.  (31  Fed.,  862), 171 

U.  P.  E.  Co.  v.  Yates  (79  Fed.,  589),  257 

U.  S.  Com.  of  Fish  &  Fisheries,  re  (1  I.  C.  C.,  21), 48 

U.  S.  Exp.  Co.,  Society  of  Am.  Florists  v.  (12  I.  C.  C.,  121), 139 

U.  S.  Exp.  Co.,  U.  S.  v.  (C.  C.,  IU.),  243 

Van  Patten  v.  C.  M.  &  St.  P.  E.  Co.   (74  Fed.,  981),  22,194,202,233 

Van  Patten  v.  C.  M.  &  St.  P.  E.  Co.  (81  Fed.,  547), 65 

V.  E.  Co.,  Loup  Creek  Co.  v.  (12  I.  C.  C.,  471), 168 

V.  E.  Co.,  Eomona  Oolithic  Stone  Co.  v.  (13  I.  C.  C.,  115), 83 

V.  S.  &  P.  E.  Co.,  Central  Y.  P.  Assn.  v.  (10  I.  C.  C.,  193), 76,  78, 113 

V.  S.  &  P.  E.  Co.,  Connor  v.  (36  Fed.,  273),  194 

V.  S.  &  P.  E.  Co.,  Monroe  Progressive  League  v.  (I.  C.  C.  Docket,  1388),  122 

Vacuum  Oil  Co.,  U.  S.  v.   (D.  C.,  N.  Y.),  223,  226,  227 

Van  Camp  B.  Vault  Co.  v.  C.  I.  &  L.  E.  Co.  (12  I.  C.  C.,  80), 139 

Vance  v.  Vandercook   (170  U.  S.,  438),   41 

Van  Elten,  Standard  Oil  Co.  v.  (107  U.  S.,  325), 171 

Vermont  State  Grange  v.  B.  &  L.  E.  Co.  (1  I.  C.  C.,  158), 79 

Vincent  v.  C.  &  A.  E.  Co.  (49  IU.,  33), 195 

Voelker,  C.  M.  &  St.  P.  E.  Co.  v.  (129  Fed.,  522), 54 

Voelker  v.  C.  M.  &  St.  P.  E.  Co.  (116  Fed.,  867), 54 

W.  &  A.  E.  Co.,  Council  v.  (1  I.  C.  C.,  339), 32,  43,  74,  76,  82,  83, 130 

W.  &  A.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Ga.),  236 

W.  &  A.  E.  Co.,  E.  Com.  v.  (5  I.  C.  C.,  324), 72,  74,  75,  78,  80, 83 

W.  &  A.  E.  Co.,  TJ.  S.  v.  (D.  C.,  Ga.), 215 

W.  &  L.  E.  E.  Co.,  TJ.  S.  v.  (D.  C.,  Ohio,  June  16,  1908), 55 

W.  C.  E.  Co.,  Johnson  and  Huey,  TJ.  S.  v.  (D.  C.,  Minn.), 225 

W.  N.  Y.  &  P.  E.  Co.,  Indpt.  Eef.  Assn.  v.  (5  I.  C.  C.,  415), 72,  75, 78,  81 

W.  N.  Y.  &  P.  E.  Co.,  Indpt.  Eef.  Assn.  v.  (6  I.  C.  C.,  378), 35, 

72,  83, 114, 118, 132, 136 

W.  N.  Y.  &  P.  E.  Co.,  I.  C.  C.  v.  (C.  C.,  Pa.),  237 

W.  N.  Y.  &  P.  E.  Co.,  Eeynolds  v.  (1  I.  C.  C.,  347),  108, 121 

W.  N.  Y.  &  P.  E.  Co.,  Eeynolds  v.  (1  I.  C.  C.,  393), 76 

W.  N.  Y.  &  P.  E.  Co.,  Eice,  E.  &  W.  v.  (2  I.  C.  C.,  389), 71,  74 

W.  N.  Y.  &  P.  E,  Co.,  Eice,  E.  &  W.  v.  (3  I.  C.  C.,  87), 183, 184 

W.  N.  Y.  &  P.  E,  Co.  Eice,  E.  &  W.  v.  (4  I.  C.  C.,  131), 74,  75,  77 

W.  N.  Y.  &  P.  E.  Co.,  Eice,  E.  &  W.  v.  (6  I.  C.  C.,  455), 135 

W.  E.  Co.,  Johnston-Larimer  D.  G.  Co.  v.  (12  I.  C.  C.,  51),  .  .22, 112, 120, 139, 186 

W.  E.  Co.,  Murphy,  Wasey  &  Co.  v.  (5  I.  C.  C.,  122), 72 

W.  E.  Co.,  Sheldon  v.   (105  Fed.,  785),  234 

W.  E.  Co.,  TJ.  S.  v.  (D.  C.,  111.,  Nov.  19,  1907),  55 

W.  M.  &  P.  E.  Co.  v.  Jacobson  (179  TJ.  S.,  287), 22 


TABLE  OP  CASES  439 

Page 

W.  V.  N.  E.  Co.  v.  U.  S.  ex  rel.  (134  Fed.,  198), 204 

W.  &  W.  E.  Co.,  Hilton  L.  Co.  v.   (9  I.  C.  C.,  17),   23,  73,  76,  78,  81 

W.  Va.  N.  E.  Co.,  IT.  S.,  ex  rel.  Kingwood  v.  (125  Fed.,  252), 58 

Wagner  Typewriter  Co.,  Wycoff  v.  (99  Fed.,  158),  161 

Walker,  Brown  v.  (161  U.  S.,  591),  162 

Warner  v.  N.  Y.  C.  &  H.  E.  E.  Co.  (4  I.  C.  C.,  32), 71, 77 

Warren-Ehret  v.  C.  E.  Co.  (8  I.  C.  C.,  598), 119 

Warren  Mfg.  Co.  v.  S.  E.  Co.  (12  I.  C.  C.,  381),  62 

Washington  Gas-Light  Co.,  D.  C.  v.  (3  Mackey,  343),  187 

Washington  Market  Co.  v.  Summy  (3  MacA.,  59),  187 

Waters-Peirce  Oil  Co.,  U.  S.  v.  (D.  C.,  Mo.),  225 

Weil,  TJ.  S.  v.  (D.  C.,  IE.), 228 

Weleetka  L.  &  W.  Co.  v.  Ft.  S.  &  W.  E.  Co.  (12  I.  C.  C.,  503), 28, 168 

Wells,  Fargo  &  Co.,  Cal.  Com.  Assn.  v.  (14  I.  C.  C.,  422), 68 

Welton  v.  Mo.   (91  U.  S.,  275),   41 

Western  Classification  Committee,  McMillan  v.  (4  I.  C.  C.,  276), 83,84,118 

Western  Oregon  L.  Mfrs.  Assn.  v.  S.  P.  Co.  (14  I.  C.  C.,  61), 122,  207 

Western  Transit  Co.,  U.  S.  v.  (C.  C.,  N.  Y.),  222,  226 

Wheaton  v.  Peters  (8  Pet.,  591),   194 

Whitcomb,  U.  S.  v.  (D.  C.,  Minn.), 215 

White  v.  M.  C.  E.  Co.  (3  I.  C.  C.,  281), 22,  73,  83, 103 

Wholesale  F.  &  P.  Assn.  v.  A.  T.  &  S.  F.  E.  Co.  (14  I.  C.  C.,  410), 69 

Wiborg  v.  U.  S.  (163  TJ.  S.,  632),  119 

Wichita  v.  M.  P.  E.  Co.  (10  I.  C.  C.,  35), 73, 78 

Wight  v.  I.  C.  C.  (167  TJ.  S.,  512), 173 

Williamson  v.  Carnan   (1  G.  &  J.,  184),   187 

Williams,  TJ.  S.  v.  (D.  C.,  Ala.),  221 

Williams  v.  Satterlee  (20  App.  D.  C.,  393), 187 

Wilmington  Tariff  Assn.  v.  C.  P.  &  Va.  E.  Co.  (9  I.  C.  C.,  118), 78 

Wilson  v.  E.  E.  Co.  (7  I.  C.  C.,  83),  35, 40 

Winkler,  P.  &  E.  E.  Co.  v.  (4  PennewiU  (Del.),  387), 54 

Winkler  v.  P.  &  E.  Co.  (53  Atl.,  90),  55 

Wood  &  Co.,  TJ.  S.  v.  (D.  C.,  Pa.), 218 

Wood,  TJ.  S.  v.   (145  Fed.,  504),   33 

Wood  v.  D.  C.  (6  Mackey,  142),  187 

Woodruff  v.  N.  Y.  S.  N.  E.  E.  Co.  (59  Conn.,  63), 22 

Worcester  Excursion  Car  Co.  v.  P.  E.  Co.  (3  I.  C.  C.,  577), 75,  77,  79 

Wrigley  v.  C.  C.  C.  &  St.  L.  E.  Co.  (10  I.  C.  C.,  412), 73, 76, 81 

Wycoff  v.  Wagner  Typewriter  Co.  (99  Fed.,  158), 161 

Wykoff,  TJ.  S.  v.   (D.  C.,  Mo.),   213 

Wylie  v.  N.  P.  E.  Co.  (11  I.  C.  C.,  145), 82 

W.  TJ.  Tel.  Co.  v.  Call  Pub.  Co.  (181  TJ.  S.,  92), 194 

W.  TJ.  Tel.  Co.,  Fishback  v.  (161  TJ.  S.,  96), 21 

Yates,  TJ.  P.  E.  Co.  v.  (79  Fed.,  589), 257 

Yeaton  v.  TJ.  S.  (5  Cranch,  281) , 18 

Y.  &  M.  V.  E.  Co.,  TJ.  S.  v.  (C.  C.,  La.), 217 

I 

Zacharie,  Boyle  v.   (6  Pet.,  648),   242 

Zorn,  TJ.  S.  v.  (D.  C.,  Ky.), 218 


INDEX 

[Eeferences  are  to  pages] 


[Provisions  of  acts  are  in  CAPITALS  and  SMALL  CAPITALS] 

Abatement  as  affecting  election  of  forum :  91. 
Abbreviations  and  technical  terms,  pleading  of :  104. 
Abstract  questions  will  not  be  determined  by  Commission :  42. 
ACCESS  to  carriers'  accounts  (act),  sec.  20:294. 
Accident  reports,  carriers  to  make:  51;  56. 

purpose  of:  56. 

must  contain  nature  and  cause  of  accidents :  56. 

not  to  be  used  as  evidence :  264. 

ACCIDENTS  included  in  annual  reports  (act),  sec.  20:  294. 
Accounts  of  carriers,  Commission  may  inspect:  49. 

may  be  examined  by  special  agents  or  examiners :  13. 
ACCOUNTS  OF  CARRIERS  (act).    See  also  Annual  report. 

failure  to  keep,  penalty,  sec.  20 :  294. 

false  entry,  penalty,  sec.  20 :  294. 

uniform  forms  may  be  prescribed,  sec.  20:  294. 
ACCRUED  CLAIMS  (act),  sec.  16:  290. 
Act  of  February  14,  1903,  creating  Department  of  Commerce  and 

Labor,  reference  to :  4. 

Act  of  June  30,  1906  (defining  right  of  immunity),  text  of:  301. 
Act  of  February  19, 1903  (Elkins'  law),  text  of:  303;  306. 

digest  of:  302. 

Act  of  February  11,  1903  (Expediting  act),  text  of:  307. 
Act  of  February  11,  1903  (Immunity  act),  text  of:  300. 
Act  supplementary  to  act  of  July  1,  1862,  etc. :  51 ;  53. 
Act  of  May  23,  1908  (Railways  in  District  of  Columbia),  text  of:  308. 

duties  of  Commission  under :  52 ;  58. 

Act  to  promote  safety  of  employees  (ash  pan  act) :  52;  58. 

441 


442  INDEX 

[Beferences  are  to  pages] 

Act  to  promote  safety  of  employees  and  travellers :  52 ;  59. 
Act  to  promote  safety  of  employees  and  travellers :  51 ;  54. 
Act  to  promote  safe  transportation  of  explosives :  52 ;  59. 
Acts  other  than  commerce  act,  duties  of  Commission  under :  51 ;  60. 
Act  to  regulate  commerce,  text  of :  279 ;  299. 
digest  of:  272;  278. 
passage  of ;  1887 :  3. 
modeled  on  English  acts:  3  (Note), 
causes  leading  to  passage  of:  4. 

power  of  Commission  is  limited  to  enforcing:  17  (Instance), 
prior  to,  traffic  was  regulated  by  common  law:  194  (Note). 
kinds  of  commerce  subject  to:  20  (Note), 
intrastate  carriers  may  become  subject  to:  35  (Instance), 
applies  to  intrastate  carrier  handling  interstate  commerce :  37. 
may  apply  to  electric  railway  lines:  25  (Instance). 
not  applicable  to  carriers  wholly  by  water :  36. 
water  carriers  may  become  subject  to:  35  (Instance), 
construction  of,  generally :  65. 
rules  of  construction  provided  in :  66. 
to  be  broadly  construed:  65  (Instance), 
to  be  construed  as  a  whole :  65. 

to  be  read  in  light  of  purposes  thereof:  68  (Instance), 
construction  of,  by  the  courts:  65. 

interpretation  of,  by  the  courts,  comment  of  Commission  on :  68. 
interpretation  of,  by  Commission:  67. 

interpretation  of,  Commission  will  consider  reports  of  congres- 
sional committee :  68. 

can  not  be  construed  to  co-operate  with  tariff  laws:  64  (Instance), 
construction  of,  as  affecting  election  of  forum :  91. 
construction  of  particular  sections — 
Section  1 — 

Reasonable  rates :  71. 

Instrumentalities  of  shipment  or  carriage :  73. 
Carriers  and  traffic  subject  to  act :  73. 
Exchange  of  transportation :  73. 
Section  2 — Unjust  discrimination:  74. 
Section  3 — 

Preference  or  advantage :  76. 
Facilities  for  interchange  of  traffic:  79. 
Section  4:  79. 
Section  5:  81. 
Section  6 :  81. 


INDEX  443 

[Beferences  are  to  pages] 

Act  to  regulate  commerce — continued. 

construction  of  particular  sections — continued. 
Section  7 :  82. 
Section  8 :  82. 
Section  9:  83. 

Sections  12, 13, 14  and  15 :  83. 
Section  15  (new)  :  83. 
Section  16 :  84. 
Section  17:  84. 
Section  20 :  84. 
Section  22 :  84. 
complaint  insufficiently  charging  a  violation  of,  will  be  dismissed : 

103  (Instance), 
classes  of  violations  of :  99. 
liability  of  carriers  created  by  section  8 :  91. 
remedy  for  violation  of,  provided  in  section  9 : 91. 
means  for  enforcing:  48. 
offenses  under,  list  of :  210. 
indictments  under,  list  of :  212 ;  215. 

Act  to  regulate  commerce  and  Elkins'  law,  indictments  under:  218. 
Actions,  limitations  of.    See  Limitations  of  actions. 
Acts  to  regulate  commerce,  list  of :  271. 
Address,  part  of  formal  complaint :  101. 

Adjacent  foreign  countries,  commerce  with,  subject  to  control  of  Com- 
mission: 19. 
Cuba  is  not :  20. 
Mexico  and  Canada  are :  19. 

Adjournments  and  extensions  of  time,  rule  of  practice  respecting :  376. 
Adjudication,  previous,  binding  on  Commission:  155  (Instance). 
Administrative  duties  of  Commission:  47. 
Administrative  rulings  and  opinions,  necessity  for :  11. 
excerpts  from:  309;  314. 

not  customary  with  Executive  Departments :  11. 
for  guidance  of  shippers  and  carriers :  11. 
have  served  to  interpret  act  to  regulate  commerce :  42. 
relating  to  express  companies:  86. 
subjects  considered  in:  85. 
weight  of:  89. 

Admissions  may  be  made  on  record  to  waive  allegations :  107. 
parties  are  bound  by :  109. 
do  not  bind  co-party:  109. 
in  one  case  do  not  bind  same  party  in  another :  109. 


444  INDEX 

[Eef  erences  are  to  pages] 

Admissions — continued. 

presumptions  may  be  in  the  nature  of:  109. 

presumptions  in  nature  of,  may  arise  from  long-continued  rate  or 

practice:  109  (Instance). 

Advance  in  rates  may  be  considered  unjust  unless  explained :  152  (In- 
stance). 

Adverse  party,  matters  peculiarly  within  knowledge  of,  pleaded :  106. 
Adverse  witnesses,  practice  in  calling  before  Commission :  164. 
Affidavit  not  a  " pleading"  within  meaning  of  sec.  860,  R.  S. :  161. 

ex  parte,  may  be  used  before  Commission :  159. 
AGENT  (act),  act  of,  deemed  act  of  carrier,  sec.  1,  ElMns'  law:  303. 

special.  See  Examiner,  special. 
Agents,  special,  of  Commission:  13. 
AGREEMENTS  (act),  copies  filed,  public  records,  prima  facie  evidence, 

sec.  16:  293. 

Aid  of  court  to  compel  obedience  to  subpoena  of  Commission :  50. 
Allegations  in  formal  petitions:  100. 

form  of:  103. 

not  usually  necessary  to  support  particular  testimony:  107. 

pleader  not  estopped  by :  107. 

collusiveness  of,  on  party  pleading :  106. 

effect  of  omission  of  proper,  in  pleading :  106. 

waiver  of:  107. 

waiver  of  part  of:  106. 

want  of,  may  be  raised  by  notice  in  nature  of  demurrer:  123. 
ALLOWANCE  for  service  rendered  by  shipper  (act),  sec.  15:  289. 
Amendment,  rule  of  practice  respecting :  376. 

liberality  in,  before  Commission:  107. 

not  permitted  if  effect  of,  is  to  make  new  case  or  create  new  is- 
sues: 107  (Instance). 

not  necessary,  to  bring  in  matters  already  pleaded :  107  (Note). 

to  bring  in  new  parties :  121. 

as  to  parties  may  be  permitted  after  initial  hearing :  121. 

may  not  be  allowed  after  hearing  where  there  is  a  defect  of 
parties:  112  (Note). 

permitted  to  change  title  of  official  of  carrier :  108. 

permitted  to  bring  in  receivers:  121  (Instance). 

may  be  used  to  cure  omission  of  proper  allegations  not  apparent 

on  face  of  pleading :  106. 
Amount  in  controversy  necessary  to  give  courts  jurisdiction :  20 ;  21. 

does  not  affect  jurisdiction  of  Commission :  18. 
Analogy  of  the  Commission  and  courts  of  equity :  16. 


INDEX  445 

[Keferences  are  to  pages] 

Annual  report  of  carriers :  9. 

ANNUAL  REPORT  OF  CARRIER  (act),  sec.  20:  294. 

Commission  to  require,  manner,  sec.  20:  294. 

specific  answers,  sec.  20:  294. 

contents,  sec.  20:  294. 

failure  to  file,  forfeiture,  sec.  20 :  294. 

oath  to,  sec.  20:  294. 

public  records,  sec.  16 :  293. 

time  of  filing,  sec.  20:  294. 
Annual  Report  of  Commission,  provisions  respecting :  11. 

contain  syllabi  of  decisions:  11. 

value  of:  11. 
ANNUAL  KEPORT  OF  COMMISSION  to  Congress  (act),  sec.  21:  297. 

published,  sec.  14:  288. 
Answer  (Commission),  part  of  the  record  of  a  proceeding:  14. 

may  raise  jurisdietional  question:  18. 

should  be  precise  and  show  defenses:  104  (Instance). 

may  be  by  way  of  disclaimer,  or  traverse,  or  confession  and 
avoidance:  123. 

may  deny,  or  admit,  or  set  up  new  facts :  124. 

generally  concedes  right  of  complainant  to  file  petition :  124. 

usually  admits  subjection  to  act  and  to  lawful  orders  of  Com- 
mission: 124. 

does  not  ask  affirmative  relief:  123. 

usually  denies  violation  of  antitrust  law :  124. 

time  for  filing:  110;  123. 

extension  of  time  for:  123. 

service  of:  125. 

receipt  of,  should  be  acknowledged :  125. 

forms  of:  327;  328. 

failure  to,  effect  of:  124. 

failure  to  file,  does  not  prevent  fixing  hearing:  127. 

effect  of,  to  part  only  of  petition:  125. 

exceptions  to,  not  customary:  126. 

verification  no  longer  required :  106. 

joint,  permitted :  126. 
Answer  (Courts)  of  carrier  to  bill  to  enforce  an  order:  250. 

of  Commission  to  bill  to  enjoin  its  order :  250. 
Antitrust  law  (act  of  July  2,  1890),  one  of  the  "commerce  laws":  60. 

prohibits  contracts  in  restraint  of  trade :  61. 

applies  to  common  carriers :  60. 

relation  of  Commission  to:  60. 


446  INDEX 

[Beferences  are  to  pages] 

Antitrust  law— continued. 

Commission  has  no  authority  to  administer:  62  (Instance). 

Commission  will  not  pass  on  alleged  violations  of:  62  (Instance). 

Commission  not  charged  with  the  enforcement  of:  61. 

evidence  tending  to  show  a  violation  of,  generally  received  by 
Commission:  61. 

frequent  allegation  that  rate  or  regulation  is  in  violation  of :  101. 

mere  agreement  to  maintain  rates  or  practices  may  be  in  viola- 
tion of:  61  (Note). 

association  in  violation  of,  may  be  a  party  complainant :  61  (In- 
stance). 

answer  usually  denies  any  violation  of:  124. 
Appeal  and  error,  generally :  Chapter  XII,  265-268. 

appeals  direct  to  Supreme  Court:  265. 

appeals  to  circuit  courts  of  appeal:  267. 

under  expediting  act:  265. 

under  act  to  regulate  commerce :  266. 

under  Elkins'  law:  266. 

Supreme  Court  will  not  disturb  findings  of  fact  concurred  in 
below:  267  (Instance). 

Supreme  Court  will  remand  case  if  proper  circumstances  have 
not  been  considered:  267  (Instance). 

costs  on  appeal :  268. 

APPEALS  TO  SUPREME  COURT  (act),  sec.  16:  290;  Expediting  act:  307. 
Appearances,  not  required  except  in  special  instances:  111. 

of  counsel  noted  on  record  at  hearing :  111. 

Applications  for  relief  under  fourth  section  (long  and  short  haul  sec- 
tion), generally:  137. 

rule  of  practice  respecting :  381. 

few  in  number :  25. 

petition  should  contain :  137. 

must  be  verified :  137. 

investigation  of,  is  required :  137. 

relief  can  be  granted  only  in  ' '  special  cases ' ' :  137. 

order  usually  temporary :  137. 

may  be  granted  if  an  order  results  in  hardship :  26  (Instance). 
APPLICATION  of  act  (act),  sec.  1:  279. 
Arbitration  act,  duty  of  Chairman  of  Commission  under:  60. 

duty  of  Commissioner  of  Labor  under:  60. 

provides  for  a  common  law  arbitration:  60  (Note). 
Argument,  generally:  129. 

time  allotted  to  each  side :  129. 


INDEX  447 

[Eef  erences  are  to  pages] 

Argument — continued. 

title  in  addressing  Commissioners  in :  129. 

part  of  record  of  a  case:  14. 

interveners  may  be  heard  at :  122. 

ARRANGEMENTS  (act) ,  copies  of,  prima  facie  evidence :  sec.  16 :  290. 
Ash-pan  act,  duties  of  Commission  under:  52;  58. 
Assignee,  custom  in  transferring  reparation  claims  to :  135. 

no  special  reparation  to :  337. 

Assigning  claims  not  allowable  in  special  reparation  cases :  337. 
Associations  without  capital  may  be  complainants:  113  (Instance). 

with  no  direct  interest  may  maintain  a  complaint:  113  (Note). 

in  violation  of  antitrust  law  may  make  complaint:  113  (Note). 

members  of,  entitled  to  reparation:  30;  132  (Instance) ;  134. 

members  of,  are  not  entitled  to  reparation  where  demand  is  in- 
definite: 132  (Instance). 
Atlantic-trans  and  Pacific-trans  commerce  not  subject  to  control  of 

Commission:  19. 
Attorney-General  may  be  requested  by  Commission  to  bring  suits  in 

mandamus:  48. 
ATTORNEY-GENERAL  (act),  assist  Commission,  sec.  12:  286. 

certificate  in  expediting  cases,  sec.  16 :  286. 

collect  forfeiture  by  civil  action,  sec.  1,  Elkins'  law:  303. 

direction  of,  forfeiture  suits,  sec.  16:  290. 

injunction  suits,  sec.  1,  Elkins'  law:  303. 

prosecutions,  sec.  12:  286. 

mandamus  proceedings,  sec.  20:  294. 

special  counsel,  sec.  16 :  290. 

Attorneys'  fees  may  be  assessed  by  the  courts :  255. 
ATTORNEYS'  PEES  (act),  sec.  8:  284;  sec.  12:  286;  sec.  16:  290. 
Auxiliary  powers  of  Commission :  50. 
Averment  necessary  to  give  Commission  jurisdiction :  100. 
Averment  of  defense,  binds  carrier:  109  (Instance). 
AWARD  OF  DAMAGES  by  Commission  (act).    See  Money  damages;  also 

Separation. 

BAGGAGE  (act),  amount  of  free,  sec.  22:  297. 
BALANCE  sheet  of  carrier  in  annual  report  (act),  sec.  20:  294. 
Basing  point,  carriers  handling  traffic  to,  not  necessary  parties  in  pro- 
ceeding attacking  rates  beyond:  117  (Instance). 
Bibliography,  legal :  395 ;  technical :  398. 
Bill,  forms  of,  to  enforce  order  of  Commission :  339. 

to  enjoin  order  of  Commission :  343 ;  347 ;  348 ;  362. 


448  INDEX 

[Beferences  are  to  pages] 

Bill  of  lading,  evidence  required  in  cases  to  compel  issuance  of:  169. 
Bill  of  particulars,  practice  respecting:  109. 

should  be  definite  and  precise:  110  (Instance). 

should  be  full:  109. 

what  should  contain  in  reparation  cases:  109. 

no  amendment  to  evade  limitations  permitted :  110. 

supplemental,  may  be  used:  110  (Note). 

difficult  in  unjust  discrimination  cases :  133. 
BILLING  (act),  false,  sec.  10:  285. 

Block-signal  systems,  Commission  to  investigate:  51;  55. 
BRANCH  LINES  (act),  sec.  1:  279. 
BRIDGES  AND  PERRIES  (act),  sec.  1:  279. 
"Bridges"  included  in  railroads:  33. 
Briefs  generally :  127. 

rule  of  practice  respecting:  379. 

part  of  record  of  a  case :  14. 

kinds  of:  128. 

contents  of:  127. 

courtesy  in:  128  (Note). 

printing  of :  127  and  Note. 

filing  of:  127. 

to  be  filed  five  days  before  argument:  128. 

service  of:  127;  128. 

cases  may  be  submitted  on :  127. 

in  reparation  cases  ought  to  contain  findings  of  fact :  128. 
Burden  of  proof:  151. 
Canada,  an  adjacent  foreign  country:  19. 
Caption  part  of  formal  complaint:  101. 

Carriers  free  to  manage  business  subject  to  prohibitions  of  act  to 
regulate  commerce:  66  (Instance). 

reports  from,  Commission  may  require:  49. 

to  make  reports  of  accidents :  51 ;  56. 

accounts  may  be  examined  by  special  agents  or  examiners  of 
Commission:  13. 

having  right  to  be  heard,  no  order  against  will  be  made :  119. 

documents  promulgated  by,  should  be  definite  and  precise :  157. 

handling  export  and  import  commerce  subject  to  act  to  regulate 
commerce:  34  (Instance). 

intrastate,  not  subject  to  act  to  regulate  commerce:  36  (Instance). 

intrastate,  may  become  subject  to  act  to  regulate  commerce :  35. 

liability  of,  created  by  section  8  of  act  to  regulate  commerce :  91. 


INDEX  449 

[Kef  erences  are  to  pages] 

Carriers — continued. 

liability  of,  for  reparation  as  handlers  of  traffic  on  through 
route:  132  (Instance). 

relations  of,  Commission  considers  substance,  not  form:  70. 

management  of,  may  be  inquired  into  by  Commission:  50. 

practices  of,  will  not  be  condemned  if  in  general  use  in  case 
where  few  carriers  are  parties :  105. 

how  described  in  pleadings:  112. 

correct  corporate  names  of  important:  112  (Note). 

common,  may  be  party  complainant  before  Commission:  112. 

as  complainants  not  entitled  to  reparation:  30. 

all,  forming  connecting  line  should  be  made  parties :  117. 

all  operating,  should  be  made  parties:  119. 

handling  traffic  to  basing  point  not  necessary  parties  in  proceed- 
ing attacking  rates  beyond:  117  (Instance). 

not  necessary  to  make  all,  having  same  rate  or  practice  defend- 
ants: 117  (Instance). 

intermediate,  are  proper  but  not  necessary  parties :  119. 

subsidiary,  are  proper  but  not  necessary  parties:  120. 

wholly  by  water,  not  subject  to  act  to  regulate  commerce :  36. 

by  water  may  become  subject  to  act  to  regulate  commerce :  35. 

by  water  when  proper  defendants:  118  (Instance). 

officials  to  be  designated  to  correspond  with  Commission :  8. 
CARRIER  covered  by  act  (act),  sec.  1:  279. 

includes  express  companies,  sec.  1:  279. 

liability.     See  Liability. 

means  common  carrier,  sec.  6 :  282. 
"Cars"  included  in  term  "transportation:"  34. 
CARS  AND  VEHICLES  (act),  furnishing  of,  sec.  1:  279. 

compelled,  sec.  23 :  298. 
Cases,  assigning  of,  by  lot  for  hearing :  7. 

consolidation  of,  permitted:  108  (Note). 

may  be  held  open  for  proof  of  reparation :  109. 

before  Commission,  may  be  retained  to  complete  proof :  23. 

may  be  held  open  to  permit  carriers  to  adjust  rates :  24. 

may  be  held  open  for  proof  of  reparation:  23  (Instance). 

if  dismissed  at  request  of  parties  Commission  may  impose  condi- 
tions: 138. 

will  not  be  reopened  to  present  stale  demands:  135  (Instance). 

statement  of,  in  briefs  should  be  concise :  128. 
"CEASE  AND  DESIST"  (act),  order  to,  sec.  15:  289. 
Certified  copies  of  tariffs,  etc.,  admitted  as  evidence  in  courts:  263. 


450  INDEX 

[References  are  to  pages] 

Certificate  of  general  public  importance,  generally :  252. 

filed  in  cases  brought  to  enjoin  order  of  Commission :  249. 
Certifications  issued  in  name  of  Secretary  of  Commission :  13. 
Certiorari  a  possible  remedy  for  defeated  complainant  before  Commis- 
sion :  187. 

Chairman  of  Commission,  duty  of  under  arbitration  act:  60. 
CHANGE  IN  BATE  (act),  notice  of,  sec.  6:  282. 
Charge,  evidence  required  in  cases  to  determine,  to  be  paid  by  carrier 

to  shipper :  171. 

Charging  part  of  formal  complaint :  101. 
Circuit  courts,  jurisdiction  of,  over  crimes  and  offenses :  210. 

jurisdiction  of,  under  Revised  Statutes:  198. 

jurisdiction  of,  under  the  interstate  commerce  acts :  199. 
Circulars,  tariff.    See  Tariff  circulars. 
Civil  service  rules  apply  to  employees  of  Commission :  14. 
CLAIM,  accrued  (act),  sec.  16:  290. 

See  also  Complaint. 
Claims,  assignee  of,  may  present:  135  (Instance) ;  253. 

for  reparation  must  originate  in  a  bona  fide  cause :  133. 

for  reparation  not  always  allowed,  although  meritorious :  133. 

for  "loss  and  damage,"   Commission  will  not  entertain  com- 
plaints: 99. 

Claims,  division  of  Commission:  8. 

Classification  committee  of  carriers  is  not  properly  made  a  party :  118. 
Classification,  evidence  required  in  cases  involving:  177. 

in  proceedings  to  change,   all  carriers  over  which  commodity 

passes  should  be  made  parties:  118  (Instance). 
CLASSIFICATION  (act),  freight,  false,  sec.  10:  285. 

schedule  to  contain,  sec.  6:  282. 
Coal  cars,  distribution  of,  recommendation  respecting:  57. 

distribution  of,  cases  involving :  58. 
Comity  between  Commission  and  State  railway  commissions :  44. 

between  Commission  and  courts:  45;  155  (Note). 

between  courts  and  Commission,  furnishing  coal  cars:  204. 
Commerce  and  labor,  Department  of,  exercises  regulatory  powers  over 

interstate  commerce:  4. 
Commerce  clanse  of  Constitution,  legislation  under :  3 ;  4. 

all  powers  under,  not  given  to  Commission :  4. 
Commerce,  field  of,  purpose  of  Congress  regarding:  38  (Instance). 

kinds  of,  under  Constitution:  20  (Note). 

kinds  of,  subject  to  interstate  commerce  act:  20  (Note) ;  33. 

kinds  of,  as  determining  jurisdiction  of  Commission :  36 ;  37, 


INDEX  451 

[^References  are  to  pages] 

Commerce — continued. 

between  a  State  and  the  District  of  Columbia:  40  (Instance), 
intraterritorial  formerly  not,  but  now,  subject  to  act  to  regulate 

commerce:  40. 

interterritorial  subject  to  act  to  regulate  commerce:  40. 
intrastate,  Commission  has  no  jurisdiction  over :  20 ;  35 ;  40. 
export  and  import,  jurisdiction  of  Commission  over :  38. 
export  and  import,  carriers  handling  are  subject  to  act  to  regu- 
late commerce:  34  (Instance). 

export  and  import,  how  far  under  control  of  Commission:  19. 
trans-Atlantic  and  trans-Pacific  not  subject  to  control  of  Com- 
mission :  19. 

originating  and  ending  in  same  State  but  passing  through  an- 
other subject  to  act  to  regulate  commerce:  34  (Instance), 
intrastate  transportation  of  interstate:  39  (Instance), 
when  interstate  character  attaches:  41. 
ceases  to  be  interstate  when  incorporated  with  other  property  of 

State:  41. 

Commerce  power  of  Constitution  granted  to  Congress  broader  than  au- 
thority of  Commission :  17. 
Commercial  conditions,  meaning  of:  152  (Note). 
Commission.    See  Interstate  Commerce  Commission. 
COMMISSION  (act).     See  Interstate  Commerce  Commission. 
Commissioner  of  Labor,  duties  of,  under  arbitration  act :  60. 
Commodities  intended  for  interstate  transportation  not  subject  to  act 

to  regulate  commerce:  40  (Instance). 
COMMODITY  (act),  carrier  not  to  transport,  in  which  interested,  sec. 

1:  282. 
Common  carrier,  definition  of:  32  (Note). 

defined  manner  in  which,  must  be  engaged  to  be  subject  to  act  to 

regulate  commerce:  33. 
COMMON  CARRIER  (act).    See  Carrier. 
Common  control,  management  or  arrangement,  water  carriers  having, 

with  rail  carriers  are  proper  defendants:  118  (Instance), 
indicia  of:  33  (Note). 

Common  law,  actions  to  enforce  rights  at,  but  not  reiterated  or  denied 
by  act  to  regulate  commerce,  may  be  brought  in  State  or 
Federal  courts :  194. 

COMMON-LAW  REMEDIES  remain  (act),  sec.  20:  294;  sec.  22:  297. 
COMMUTATION  tickets  (act),  sec.  22:  297. 
Complainant  may  have  no  real  grievance:  113  (Instance), 
joinder  of,  before  Commission:  114. 
defeated  before  Commission  may  perhaps  have  certiorari:  187. 


452  INDEX 

[References  are  to  pages] 

Complaint,  classes  of:  98. 

forms  of:  316;  320;  321;  325. 

part  of  record  of  case :  14. 

serially  numbered:  14. 

should  be  typewritten  or  printed:  110. 
•     copies  of,  required:  110. 

verification  no  longer  required:  106. 

filing  of :  110. 

and  answer  make  up  issues:  125. 

must  state  reasonable  ground  for  investigation :  102. 

containing  no  reasonable  ground  for  investigation  will  not  be 
filed:  106  (Note). 

insufficiently  charging  a  violation  of  act  will  be  dismissed :  103. 

of  unreasonable  rate  should  state  what  rate  is  reasonable :  103. 

an  omnibus,  will  not  be  entertained:  114  (Note). 

for  retaliation  does  not  commend  itself:  102  (Instance). 

must  be  sufficient  to  advise  defendant  of  nature  of  cause  of  com- 
plaint: 103  (Instance). 

should  not  be  too  broad:  102  (Instance). 

one  may  file  subsequent,  in  another  capacity:  153  (Instance). 

general  investigations  may  result  from  facts  alleged  in,  but  not 
proven:  22  (Instance). 

informal,  kinds  of:  98. 

for  "loss  and  damage"  will  not  be  entertained:  99. 

See  Formal  complaint;  Informal  complaint. 

COMPLAINTS  to  Commission  (act),  absence  of  direct  damage  not  fatal, 
sec.  13 :  288. 

carrier  notified,  sec.  13 :  288. 

election  of,  sec.  9:  284. 

investigated,  sec.  13:  288. 

limitation,  sec.  16:  290. 

State  railroad  commission,  sec.  13 :  288. 

COMPULSORY  TESTIMONY  (act),  sec.  9:  284;  sec.  12:  286;  sec.  9:  298; 
sec.  3,  Elkins'  law:  305;  Immunity  act:  300;  Act  defining 
immunity:  301. 

Concurrences  to  tariffs  may  be  stated  in  pleadings :  104  (Note) . 
CONCURRENCE  in  joint  tariff  (act),  sec.  6:  282. 
Conclusion  part  of  formal  complaint:  101. 

Conditions  may  be  imposed  in  permitting  dismissal  of  cases:  138. 
Conference  days  of  Commission:  11  (Note). 
Conference  rulings  of  Commission:  12. 

subjects  considered  in :  86. 


453 


CONFLICTING  ACTS  repealed  (act),  sec.  24:  298;  sec.  4,  Elkins'  law: 

306 ;  sec.  10 :  299. 
Congress,  purpose  of,  as  to  field  of  commerce  to  be  covered  by  act  to 

regulate  commerce:  38  (Instance). 
CONNECTING  LINES  not  to  discriminate  (act),  sec.  3:  281. 
Consent,  jurisdiction  of  courts  not  conferred  by :  233. 
Consolidation  of  cases  permitted:  108  (Note). 

used  to  avoid  multif ariousness :  108. 
Constitution,  commerce  clause  of:  4  (Note). 

legislation  under:  3. 

kinds  of  commerce  specified  in:  20  (Note). 

Constitutional  provisions  of  a  State,  Commission  will  not  enforce :  20. 
Constitutionality,  Commission  will  not  determine,  of  the  act  to  regu- 
late commerce:  42. 
Construction  of  act  to  regulate  commerce:  65. 

rules  of  provided  in:  66. 

by  the  courts :  65. 

can  not  be  made  to  cooperate  with  tariff  laws :  64  (Instance) . 
Contempt,  none  before  Commission:  50  (Note). 

one  charged  with,  not  entitled  to  jury  trial :  241. 

nature  of  proceedings  in:  240. 

of  court  to  appear  before  Commission:  240. 
CONTEMPT  OF  COURT  (act),  sec.  12:  286. 
Continuous  carriage,  evidence  in  cases  to  secure :  168. 
CONTINUOUS  CARRIAGE  of  freights  (act) ,  sec.  7 :  284. 
Contracts,  how  pleaded  if  required  by  act  to  regulate  commerce  to  be 

filed  with  Commission :  104. 
CONTRACTS  (act),  copies  to  be  filed,  sec.  6:  282. 

public  records,  sec.  16 :  290. 
Controversy,  amount  in,  does  not  affect  jurisdiction  of  Commission :  17. 

jurisdiction  of  Commission  to  determine  entire:  22. 
Corporations,  how  alleged  in  pleadings :  112. 
CORPORATION  carrier  made  liable  (act),  sec.  1,  Elkins'  law:  303. 
Correspondence  with  Commission,  how  conducted :  8. 

assignments  of  States  for,  not  to  be  confused  with  groupings  for 

statistical  purposes :  7. 
COSTS  AND  EXPENSES  (act),  court,  sec.  12:  286. 

depositions,  sec.  12 :  286. 

forfeiture  suits,  sec.  16:  290. 

money  damage  cases,  sec.  16 :  290. 
Costs,  none  before  Commission :  130. 

as  affecting  election  of  forum:  91. 

on  appeal  in  courts :  268. 


454  INDEX 

[References  are  to  pages] 

Cost  of  carriage,  methods  of  ascertaining:  382. 
Counsel,  appearance  of,  noted  at  hearing:  111. 

special,  may  be  employed  by  Commission :  8 ;  50. 
fees,  Commission  can  not  award :  130. 
may  be  taxed  by  court :  198. 
may  be  considered  in  electing  forum:  91. 
COUNSEL  (act),  fee  allowed,  sec.  8:  284;  sec.  12:  286;  sec.  16:  290. 

special,  employed  by  Commission,  sec.  16:  290. 
Courts,  general  chancery  jurisdiction  of  Federal :  242  and  Instance, 
not  mere  executioners  of  order  of  Commission:  234  (Instance), 
aid  of,  to  compel  obedience  to  subpoena  of  Commission :  50. 
power  of,  to  compel  answer  to  question  before  Commission  is  not 

unconstitutional:  241  (Instance). 

contempt  of,  to  obey  order  to  appear  before  Commission :  240. 
amount  necessary  to  give  jurisdiction:  20  (Instance), 
power  of,  to  enjoin  rates:  21. 

Federal,  have  jurisdiction  to  protect  interstate  commerce:  191. 
power  of,  to  compel  obedience  to  provisions  of  act  to  regulate 

commerce:  21. 
may  prevent  violations  of  act  to  regulate  commerce  under  Elkins ' 

law :  48. 
can  they  prevent  a  threatened  violation  of  law  under  section  3  of 

Elkins 'law:  49  (Note). 

may  direct  discontinuance  of  discriminations:  48. 
may  assess  attorneys'  fees:  130;  255. 
may  compel  observance  of  published  tariffs:  48. 
limitation  of  actions  before :  238. 

follow  State  statutes  respecting  limitation  of  actions :  92. 
proceeding  to  enforce  order  of  Commission  is  independent  and 

original:  234  (Instance), 
comity  between,  and  Commission:  45. 
extraordinary  writs  which  may  be  issued  under  act  to  regulate 

commerce:  198. 

leave  of,  not  necessary  to  complain  of  receivers:  118  (Instance). 
venue:  229. 

rules  of  common  law  furnish  true  guide  for :  191. 
judicial  notice  of  seal  of  Commission :  264. 
Procedure  before,  generally :  Part  II,  191-268. 

See  Pleading  and  Practice  (Courts) ;  Jurisdiction  (Courts) ;  Evi- 
dence (Courts) ;  Appeal  and  Error. 
Courts  of  equity,  analogy  of  Commission  to :  16. 
Courts,  Federal,  powers  given  to,  by  act  to  regulate  commerce :  197. 


INDEX  455 

[Eeferences  are  to  pages] 

Courts,  State,  have  no  jurisdiction  over  interstate  commerce :  22. 

may  have  apparent  concurrent  jurisdiction  in  certain  cases :  22. 
COURT  (act),  appeal  to  Supreme,  sec.  16:  290;  Expediting  act,  307. 
attorney  fees,  sec.  8:  284;  sec.  12:  286;  see.  16:  290. 
compulsory  testimony.    See  Compulsory  testimony, 
contempt  of,  sec.  12 :  286. 
contracts,  etc.,  filed  with  Commission  prima  facie  evidence,  sec. 

16:  290. 

costs  and  expenses.    See  Costs  and  expenses. 
Elkins'  law,  procedure,  sec.  1:  303. 
enforce  disobeyed  order,  sec.  16 :  290. 
findings  of  fact  of  Commission  awarding  damages  prima  facie 

evidence,  sec.  16:  290. 

injunction  and  interlocutory  order.    See  Injunction, 
joinder  of  parties,  sec.  16 :  290 ;  sec.  2,  Elkins '  law :  304. 
jurisdiction  in  cases  other  than  for  payment  of  money,  sec.  16: 
290. 

false  billing  and  rebate  cases,  sec.  10 :  285 ;  sec.  1,  Elkins'  law : 
303. 

free-pass  cases,  sec.  1 :  279. 
limitations  of  actions,  sec.  16 :  290. 
mandamus,  as  to  cars  and  facilities,  sec.  23 :  298. 

to  enforce  act,  sec.  20:  294. 
money  damages.    See  Money  damages, 
power  over  order  of  Commission,  sec.  15 :  289. 
proceedings  to  enjoin   departure  from  published  rate,   sec.   3, 

Elkins'  law:  305. 
self -crimination,  sec.  9 :  284 ;  sec.  12 :  286 ;  Immunity  act :  300 ; 

Defining  right  of  immunity  act:  301. 
service  of  process,  sec.  16 :  290. 

suit  for  recovery  of  damages,  sec.  9 :  284 ;  sec.  16 :  290 ;  sec.  1, 
Elkins 'law:  303. 

for  recovery  of  forfeitures,  sec.  16 :  290 ;  sec.  20 :  294 ;  sec.  1, 
Elkins 'law:  303. 

for  switch  connections,  sec.  1 :  279. 

to  enforce  act,  sec.  12 :  286. 
venue  of  suits  against  Commission,  sec.  16:  290. 
Crimes  and  offenses,  jurisdiction  of  courts  in:  210. 
CRIMINAL  PROVISIONS  (act),  antipass,  sec.  1:  279. 
Elkins'  law,  rebates,  etc.,  sec.  1 :  303. 
false  entry  in  accounts,  divulging,  etc.,  sec.  20:  294. 
general,  sec.  10:  285. 
jurisdiction  of,  sec.  1,  Elkins'  law:  303. 


456  INDEX 

[References  are  to  pages] 

Criminal  violations  of  interstate  commerce  act,  cases  of  prepared  by 

Division  of  prosecutions:  8. 

Cuba,  commerce  with,  not  subject  to  control  of  Commission :  19 ;  20. 
Custom  and  usage,  testimony  concerning,  is  received  with  reluctance: 

157  (Instance). 

Customs  duties,  changes  in,  as  affecting  volume  of  traffic  may  be  con- 
sidered by  Commission:  63  (Instance). 
Customs  laws,  relation  of  Commission  to :  63. 
Damages,  not  awarded  where  carrier  entitled  to  jury  trial :  32. 

if  susceptible  of  computation  reparation  may  be  awarded :  134. 

measure  of,  for  unreasonable  rates:  32  (Instance). 

reparation  will  not  be  awarded  for  speculative :  133  (Note) ;  134. 

not  necessary  that  shipper  ultimately  sustain,  in  order  to  secure 
reparation:  132  (Instance). 

whether  order  for  by  Commission  will  be  paid,  as  affecting  elec- 
tion of  forum:  92. 

See  Reparation  and  Money  damages. 

DAMAGE  (act),  absence  of  direct,  not  fatal  to  complaint,  sec.  13:  288. 
DAMAGES  (act).    See  Money  damages. 
Decisions  of  Commission,  not  to  be  confused  with  annual  reports :  10. 

how  cited :  10. 

syllabi  of,  in  Annual  Reports:  11  (Note). 
Decisions  of  courts,  weight  given  to,  by  Commission :  46. 
Decisions  of  English  courts  may  be  cited :  128. 

weight  of,  by  various  tribunals :  128. 

time  required  for :  14. 
DECREE  (act).    See  Order. 

Defects  in  proceedings  before  Commission,  if  not  jurisdictional,  may 
be  cured:  22. 

if  jurisdictional  causes  dismissal  of  complaint:  22. 
Defense,  complete,  should  be  presented  to  Commission:  166  (Instance). 

different  or  apparently  inconsistent,  may  be  pleaded :  124. 

anticipated,  may  be  pleaded:  104. 

allegation  in  petition  setting  up,  form  of :  334. 

Delivery  of  property,  services  in  connection  with,  included  in  "trans- 
portation:" 34. 

Demand  for  reparation,  indefinite  will  not  entitle  to :  132  (Instance). 
Demurrer,  formal  may  be  used:  111. 

may  be  used  to  raise  jurisdictional  questions :  18. 

notice  in  nature  of :  111 ;  123. 

Department  of  Justice  prosecutes  cases  of  criminal  violation  of  inter- 
state commerce  act  prepared  by  Division  of  prosecutions :  8. 


INDEX  457 

[Eeferences  are  to  pages] 

Departure,  none  in  pleading  before  Commission:  108. 
DEPARTURE  from  published  rates  (act)  .  See  Rebates. 
Depositions,  rule  of  practice  respecting :  158 ;  377. 

are  opened  by  the  Secretary  of  Commission :  159. 

notice  of  taking,  forms  for :  330. 
DEPOSITIONS  (act),  compulsory,  sec.  12:  286. 

fees  of  officers  and  witnesses,  sec.  12 :  286. 

filed  with  Commission,  sec.  12 :  286. 

foreign  countries,  sec.  12 :  286. 
DEPOTS  (act),  yards  and  grounds,  sec.  1:  279. 
"Determine,"  a  judicial  word :  26  (Note) . 
Disclaimer  used  where  a  carrier  improperly  made  defendant :  125. 

effect  of,  if  true:  125. 

Discovery,  petition  may  ask  for  information  as  in  bill  for :  106. 
Discriminations  between  persons,  evidence  required  in  cases  alleging 
unjust:  172. 

due  to  State  rate  does  not  oust  jurisdiction  of  Commission :  40. 

statute  does  not  apply  to,  in  adjacent  foreign  country :  19  (Note). 

courts  may  prevent :  48. 
DISCRIMINATION  between  connecting  lines  forbidden  (act),  sec.  7:  286. 

unjust,  sec.  6:  284.    See  also  Rebates. 

Dismissed,  no  complaint  will  be,  because  of  absence  of  damage  to  com- 
plainant: 113. 

complaint  insufficiently  charging  violation  of  act  will  be:  403. 

proceeding  will  be,  as  to  carrier  improperly  made  party :  120. 

petition,  orders  respecting:  139. 
District  attorneys  may  be  asked  by  Commission  to  institute  proceedings 

to  enforce  and  prevent  violation  of  act :  48. 
DISTRICT  ATTORNEY  (act),  duty,  as  to  forfeiture,  sec.  16:  290. 

in  enjoining  rebates,  sec.  3,  Elkins'  law:  305. 

in  prosecutions,  sec.  12 :  286. 
District  of  Columbia,  street  railways  in :  52 ;  59 ;  text  of  act :  308. 

commerce  between  State  and:  40  (Instance). 
DISTRICT  OF  COLUMBIA,  street  railways  in  (act) :  308. 
District  courts,  jurisdiction  of,  under  Revised  Statutes :  200. 

jurisdiction  of,  under  interstate  commerce  acts :  201. 
DIVISIONS  of  joint  rate  (act),  sec.  15:  289. 
Docket  of  Commission :  14. 
Documents  promulgated  by  a  carrier  should  be  definite  and  precise: 

157  (Instance). 
EFFECT  (act),  act  goes  into,  Joint  Resolution:  299. 


458  INDEX 

[Beferences  are  to  pages] 

Election  of  f ornm  generally :  91. 

choice  of  either  court  or  Commission  is  final:  91. 

See  Forum. 

ELECTION  OP  REMEDIES  (act),  sec.  9:  284. 
Electric  railway  lines  may  be  subject  to  act  to  regulate  commerce: 

35  (Instance). 

Elements  to  be  considered  in  determining  reasonable  rates :  146. 
Elevation,  included  in  "transportation:"  34. 
ELEVATION  SERVICES  (act),  sec.  1:  279. 
Elkins'  law,  digest  of:  302. 

text  of:  303;  306. 

prohibiting  violations  of :  48. 

indictments  under,  list  of :  221. 

informations  under :  228. 

jurisdiction  of  courts  under,  to  enjoin  discriminations  probably 
confined  to  existing,  not  threatened,  violations  of  act  to  reg- 
ulate commerce:  192;  491  (Note). 
ELKINS'  LAW  (as  amended) :  303-306. 
Employees,  Commission  may  hire :  50. 
EMPLOYEES  of  Commission  (act),  sec.  18:  294. 

names  and  compensation  of,  in  annual  report,  sec.  21 :  297. 
Of  carriers,  free  passage,  sec.  1 :  279. 

to  testify,  sec.  9:  284. 

liable  for  false  billing,  etc.,  sec.  10 :  285. 

liable  for  rebate,  sec.  1,  Elkins'  law:  303. 

salary  and  number  in  annual  report,  sec.  20 :  294. 
English  acts  may  furnish  authority  for  construction  of  act  to  regulate 

commerce:  66  (Note). 
ENJOIN  (act).    See  Injunction. 

ENUMERATION  of  powers,  not  exclusive  (act),  sec.  15:  289. 
Estoppel,  strict  rules  of,  do  not  apply :  153. 

neither  party  subject  to  rules  of,  in  introduction  of  evidence  ger- 
mane to  the  inquiry :  125. 

does  not  prevent  filing  subsequent  petition:  153  (Instance). 

pleader  not  estopped  by  allegations  in  pleading :  107. 

Commission  adheres  to  previous  decision  unless  there  has  been  a 

misconception  or  new  facts  arise:  154  (Instance). 
Evidence  (Commission)  generally:  Chapter  VII,  143-180. 

none  of  the  technical  rules  of,  apply :  143. 

common-law  rules  of,  should  govern  Commission:  143;  144  (In- 
stance) . 

necessity  for  liberality  of  rules  of :  143. 


INDEX  459 

[Eeferences  are  to  pages] 

Evidence  (Commission)— continued. 

nature  of  testimony  before  Commission:  145. 

purpose  of,  before  Commission  is  to  get  facts,  irrespective  of  tech- 
nical rules  respecting :  143. 

may  be  received  by  Commission  under  powers  of  general  investi- 
gation in  cases  upon  formal  complaint :  108. 

all  material  facts  should  be  presented :  150. 

additional,  may  be  introduced  after  amendment  as  to  parties: 
121  (Instance). 

broad  scope  of,  in  complaint  against  advanced  rates:  176  (In- 
stance) . 

character  of,  under  the  pleadings :  149. 

testimony  not  confined  usually  to  allegations  in  pleadings :  149. 

complete  defense  should  be  presented:  166  (Instance). 

defendant  is  under  a  duty  to  introduce,  under  a  defense  pleaded : 
109  (Instance). 

difference  of,  in  reasonableness  of  single  and  entire  schedule  of 
rates:  146  (Instance). 

documentary,  Commission  is  lenient  respecting  introduction :  156. 

documentary,  rule  of  practice  respecting:  378. 

ex  parte  affidavits  may  be  used  before  Commission :  159. 

exceptions  to,  not  availing  before  Commission :  143. 

expert  and  opinion,  frequent  before  Commission :  145. 

custom  and  usage  received  with  reluctance:  157  (Instance). 

inferences,  facts  not  inferred  from  facts  proven,  as  rebates  do  not 
show  published  rate  unlawful:  150. 

estoppel,  strict  rules  of,  do  not  apply  before  Commission :  153. 

estoppel,  Commission  adheres  to  previous  decision  unless  rendered 
under  a  misconception,  or  new  facts  arise :  154  (Instance). 

hearsay,  rules  respecting,  not  enforced  before  Commission :  155. 

secondary,  admissability  of:  150. 

burden  of  proof  is  on  party  alleging:  150. 

judicial  notice,  matters  of  which  Commission  take :  144. 

want  of,  may  prevent  determination  of  question :  42 ;  43. 

may  be  insufficient  to  sustain  allegations:  151  (Instance). 

must  be  sufficient  to  sustain  allegations:  166  (Instance). 

may  be  received,  although  no  allegations  to  support  it:  107. 

tending  to  show  a  violation  of  antitrust  law  generally  received 
by  Commission :  61. 

may  be  received  by  examiners :  13 ;  28. 

matters  of,  should  not  be  pleaded :  102. 

necessity  for  proof  in  issues  of  fact :  165. 


460  INDEX 

[References  are  to  pages] 

Evidence  (Commission) — continued. 

prima  facie  defined:  262. 

order  of,  generally:  150. 

parol  or  extrinsic,  affecting  writings :  156. 

parol  or  extrinsic,  technical  terms  may  be  explained  by :  157. 

of  rebates  not  competent  to  show  unreasonableness  of  published 
tariff:  150. 

of  voluntary  reduction  of  rates  not  evidence  that  former  rate 
unreasonable:  150. 

continuance  of  rate  not  evidence  of  its  reasonableness :  150. 

of  erroneous  application  of  tariff  not  evidence  of  unreasonable- 
ness of  correct  rate :  150. 

rules  respecting  taking,  by  depositions :  158. 

statistical  tables  may  be  introduced  in,  although  compiler  be  not 
sworn:  155. 

notice  to  produce,  usual  rules  respecting  are  followed :  158. 

accident  reports  not  to  be  used  as:  56. 

further,  may  be  admitted  upon  particular  points  if  circumstances 
warrant:  23  (Instance). 

how  tariffs  and  schedules  introduced  in :  144. 

cumulative,  not  cause  for  rehearing :  182. 

in  one  case  may  be  used  in  another:  144  (Instance). 

introduced  for  one  purpose  not  admissible  for  another :  49. 

respecting  rates  unreasonable  per  se,  usually  received  under  al- 
legation of  relatively  unreasonable  rates:  125. 

is  required  in  certain  cases:  151  (Instance). 

may  be  given,  if  material,  although  not  pleaded  in  answer :  124. 

modes  of  securing  and  avoiding  subposna  duces  tecum :  149. 

in  general  investigations :  180. 

in  informal  complaints:  180. 

in  special  investigations :  180. 
Required  in  particular  cases :  167-180. 

involving  unreasonable  and  unjust  practices :  171. 

alleging  failure  to  make  switch  connections :  168. 

to  compel  publication  and  filing  of  tariffs:  169. 

to  compel  issuance  of  bill  of  lading :  169. 

to  secure  continuous  carriage :  168. 

seeking  through  routes  and  joint  rates :  168. 

to  compel  furnishing  facilities  for  interchange  of  traffic :  169. 

alleging  violation  of  long  and  short  haul  section :  170. 

to  determine  compensation  to  be  paid  shipper  for  carriers :  171. 

involving  unjust  discriminations  between  persons:  172. 


INDEX  461 

[Beferences  are  to  pages] 

Evidence  (Commission) — continued. 

Eequired  in  particular  cases — continued, 
involving  reasonableness  of  rates:  173. 
involving  classification  of  freight:  177  (Instance), 
involving  undue  prejudice  and  disadvantage  of  localities :  178. 
involving  undue  prejudice  or  disadvantage  to  commodities:  178. 
in  reparation  cases:  179. 

in  applications  for  relief  under  long  and  short  haul  section :  170. 
See  Witnesses;  Presumptions;  Estoppel;  Compulsory  testimony; 
Depositions. 

Evidence  (Courts),  generally:  Chapter  XI,  257-264. 
rules  of,  prescribed  by  the  acts :  257. 
in  equity  cases :  260. 
in  criminal  cases:  259. 
in  civil  cases:  259. 

right  of  Congress  to  prescribe  rules  of:  257  (Note) ;  258  (Note), 
weight  of  opinion  of  Commission:  262. 

before  Commission  is  not  part  of  court  record:  263  (Instance), 
before  Commission  may  be  introduced  in:  263. 
accident  reports  are  not  to  be  used  as:  264. 

EVIDENCE,  prima  facie  (act),  sec.  16:  290. 

EXAMINERS  AND  AGENTS  (act),  special,  sec.  20:  294. 
access  to  accounts  of  carrier,  sec.  20 :  294. 
oath  administered  by,  sec.  20 :  294. 
penalty  for  divulging,  sec.  20:  294. 
testimony  before,  sec.  20:  294. 

Examiners  may  be  employed  by  Commission:  13;  50. 

are  authorized  to  administer  oaths,  examine  witnesses  and  receive 

testimony:  13;  28. 
See  also  Special  agents  and  examiners. 

Exceptions  to  answer  not  customary :  126. 

Exceptions  to  evidence  not  used  before  Commission :  156. 

EXCURSION  TICKETS  (act),  sec.  1:  279. 

Execute  and  enforce,  an  administration  duty :  47. 

power  to,  is  party  judicial,  partly  executive,  and  partly  adminis- 
trative: 16. 
will  not  by  implication  give  power  to  make  rates:  47  (Note). 

Exhibits,  practice  respecting:  109. 

contracts  not  required  to  be  filed  with  Commission  may  be  an- 
nexed to  pleadings  as :  104. 


462  INDEX 

[Eeferences  are  to  pages] 

Expediting  act,  text  of:  307. 

generally:  239. 

certificate  under:  239. 

applicable  to  suits  to  enjoin  order  of  Commission :  206. 
EXPEDITING  ACT,  text  of:  307. 

applies  to  Commission  cases,  307. 

applies  to  suits  against  Commission,  sec.  16 :  290. 
EXPENSES  of  Commission  (act),  how  paid,  sec.  19:  294. 
Expert  and  opinion  evidence  frequent  before  Commission  :  145. 
Expert  knowledge  of  Commission  as  affecting  election  of  forum:  91. 
Explosives,  act  to  promote  safe  transportation  of:  52. 
Export  and  import  commerce;  carriers  handling,  subject  to  act  to  reg- 
ulate commerce:  34  (Instance). 

jurisdiction  of  Commission:  38  (Instance). 
Express  companies  subject  to  act  to  regulate  commerce :  32. 

may  be  parties  defendant:  116. 
EXPRESS  COMPANIES  (act),  employees  carried  free,  sec.  1:  279. 

included  in  act,  sec.  1 :  279. 

Facilities  for  interchange  of  traffic,  evidence  required  in  cases  al- 
leging failure  to :  169. 

FACILITIES  for  interchange  of  traffic  (act),  sec.  3:  281. 
Facts  only  should  be  pleaded:  102. 

answer  may  deny,  or  admit,  or  allege  new:  124. 

full  knowledge  of,  is  essential  to  a  decision  of  Commission :  42. 
FALSE  billing  (act),  sec.  10:  285. 

entry  in  accounts,  etc.,  sec.  20:  294. 
FARES  (act).    See  Tariff. 

Federal  charter,  does  not  preclude  jurisdiction  of  Commission :  35. 
Federal  courts.    See  Courts. 
FEES  (act),  before  Commission,  sec.  19:  294. 

before  courts,  sec.  12:  286;  sec.  16:  290. 

deposition,  sec.  12 :  286. 
Fees  of  witnesses :  160 ;  264. 
Ferries  and  bridges,  included  in  "railroad:"  33. 
FERRIES  AND  BRIDGES  (act) ,  sec.  1 :  279. 
FILE  (act),  contracts,  arranugements,  etc.,  sec.  6:  282. 

tariff.    See  Tariff. 
FINDINGS  OP  FACT  in  money  damages  (act),  sec.  14:  288. 

prima  facie  evidence,  sec.  16:  290. 

Foreign  countries,  commerce  with  adjacent,  subject  to  control  of  Com- 
mission: 19. 
FOREIGN  COUNTRY  (act),  posting  of  tariff  through,  sec.  6:  282. 


INDEX  463 

[Beferences  are  to  pages] 

Foreign  rail  carriers  are  subject  to  general  investigations:  25   (In- 
stance). 
Forfeiture,  meaning  of:  202  (Note). 

list  of,  provided  for  in  act  to  regulate  commerce :  202. 

jurisdiction  of  courts  in  suits  for :  202. 

venue  of  suits  for:  202. 

FORFEITURE  (act),  consideration  illegally  received,  sec.  1,  Elkins'  law: 
303. 

costs  and  expenses  of  suit  for,  sec.  16 :  290. 

disobedience  to  orders  of  Commission,  sec.  16:  290. 

duty  of  district  attorney,  sec.  16 :  290. 

failure  to  file  annual  report,  recovery,  sec.  20:  290. 

failure  to  keep  accounts,  sec.  20:  290. 

recoverable  by  civil  suit,  sec.  16 :  290. 
FORM  OF  PROCEDURE  before  Commission  (act),  sec.  17:  293. 
Formal  allegations,  notice  in  nature  of  demurrer  may  be  used  to  show 

want  of:  123. 
Formal  complaint,  form  and  requisites  of :  100. 

similarity  to  bill  in  equity:  100. 

parts  of:  101. 

may  be  filed  against  carriers  and  others :  99. 

allegations  in :  100. 

See  also  Complaints. 
Forms  (Commission) — 

complaint  against  a  single  carrier :  316. 

complaint,  State  railroad  commission  and  shippers:  316. 

complaint  against  two  or  more  carriers :  320. 

petition  by  voluntary  association  against  two  carriers :  321. 

alleging  violation  of  sec.  4  of  the  act :  325. 

seeking  obedience  to  sec.  6:  325. 

prayer  for  compliance  with  sec.  6:  326. 

by  a  common  carrier  seeking  the  establishment  of  a  through 
route  and  joint  rates  with  another :  326. 

prayer  for  through  route  and  joint  rates :  326. 

answers:  327-328. 

notice  by  carrier  under  Eule  V  /notice  in  nature  of  demurrer) : 
329. 

subpoana:  329. 

notice  of  taking  depositions  under  Rule  XII :  330. 

motion  for  time  to  file  petition  of  intervention :  330. 

motion  for  leave  to  intervene :  331. 

intervening  petition:  331. 


464  INDEX 

[References  are  to  pages] 

Forms  (Commission) — continued. 

prayers:  332. 

allegation  in  petition  setting  up  defense  of  carrier :  334. 

form  prescribed  for  special  reparation  cases:  334. 
Forms  (Courts) — 

bill  by  Commission  to  enforce  its  order:  339. 

bill  to  enjoin,  set  aside,  and  annul  order  of  Commission  involving 
a  practice :  343. 

bill  to  enjoin,  set  aside  and  annul  order  of  Commission  involving 
reasonableness  of  rate:  347,  348,  362. 

order  of  court  why  injunction  should  not  issue :  371. 

notice  of  application  for  an  order:  372. 

notice  of  passage  of  order:  373. 

notice  of  order  why  injunction  should  not  issue :  373. 
Forum,  election  of,  is  final:  91. 

selection  of  as  between  courts  where  jurisdiction  is  concurrent 

important:  193. 
Fourth  section,  applications  under,  rule  respecting:  381. 

in  application  for  relief  under,  all  carriers  forming  through  line 
should  be  made  parties:  118  (Instance). 

See  Applications  for  relief  under  long  and  short  haul  section. 
FREE  TRANSPORTATION  OF  PERSONS  (act),  sec.  1:  279. 

excepted  cases,  sec.  1 :  279. 

interchange  permitted,  sec.  1 :  279. 

penalty  and  jurisdiction  of  courts,  sec.  1 :  279. 

prohibited,  sec.  1:  279. 

property  in  certain  cases,  sec.  22 :  297. 
Freight  depots,  included  in  "railroads":  33. 
FURNISHING  CARS  (act),  sec.  1:  279. 

mandamus  to  compel,  sec.  23 :  298. 

Gas,  carriers  of,  not  subject  to  act  to  regulate  commerce :  32. 

General  averments  in  pleadings  will  not  sustain  claims  for  reparation : 
103  (Instance). 

General  investigations,  nature  of:  24. 

not  precluded  by  want  of  jurisdiction :  25  (Instance). 

have  covered  practices  of  carriers,  proposed  advances  in  rates, 

filing  of  tariffs,  and  relation  of  rates:  24. 
foreign  rail  carriers  are  subject  to:  25  (Instance), 
may  be  predicated  on  facts  in  formal  petition:  22  (Instance). 
Commission  may  make,  under  act  to  aid  in  construction  of  rail- 
road and  telegraph  line  to  Pacific  Ocean :  52. 


INDEX  465 

[Eeferenees  are  to  pages] 

General  investigations — continued. 

notice  and  opportunity  to  be  heard  in,  is  compliance  with  statute : 
25  (Instance). 

orders  may  be  issued  in:  24. 

evidence  in:  180. 

General  order  is  used  for  general  investigations :  18. 
Ground  for  investigation,  complaint  must  state :  102. 
Grounds  used  or  necessary  in  transportation  of  interstate  freight  in- 
cluded in  ''railroad":  33. 
Groups  of  railways  for  statistical  purposes :  9. 

Handling  of  property,  services  in  connection  with,  included  in  "trans- 
portation": 54. 

HAUL,  long  and  short  (act),  sec.  4:  282. 
Hearings,  generally:  127. 

rule  of  practice  respecting:  376. 

part  of  record  of  case :  14. 

appearances  of  counsel  noted  at :  111. 

may  be  set  after  time  for,  if  no  answer  filed :  127. 

may  for  cogent  reasons  be  delayed :  127. 

notice  of,  may  be  published  to  permit  public  to  be  heard :  121. 
Hours  of  service  act :  52 ;  59. 
Icing.    See  Refrigeration  or  icing. 
ICING  SERVICE  (act),  sec.  1:  279. 
Immigration  laws,  relation  of  Commission  to :  63. 
Immigration  regulations,  Commission  can  not  interfere  with :  64. 
IMMUNITY,  denned  (act),  immunity  acts:  300-301. 

to  testifying  witnesses,  sec.  9 :  284 ;  sec.  12 :  286. 

See  also  Immunity  acts,  300-301. 
Immunity  of  witnesses,  generally :  160. 

statutes  relating  to :  161  and  Note. 

text  of  immunity  act :  300. 

text  of  act  denning  right  of :  301. 

provisions  in  act  to  regulate  commerce  respecting:  67. 

constitutional  provision  concerning:  160. 

decisions  respecting:  162  (Note) ;  163  (Note). 
Import  and  export  commerce  within  control  of  Commission :  19. 
IMPRISONMENT  for  discrimination  (act),  sec.  1,  Elkins'  law:  303. 
IMPROVEMENTS  of  carrier,  in  annual  report  (act),  sec.  20:  294. 
Inconsistent  defenses  may  be  pleaded :  124. 

Indictment  may  be  had  in  district  other  than  that  in  which  crime  was 
begun :  231. 

under  act  to  regulate  commerce,  as  amended,  list  of :  215. 


466  INDEX 

[References  are  to  pages] 

Indictment — continued. 

under  act  to  regulate  commerce,  list  of  prior  to  Elkins'  law:  212. 

under  interstate  commerce  and  Elkins'  law,  list  of:  218. 

under  Elkins 'law:  221. 

under  section  5440,  Revised  Statutes :  228. 
"INDUSTRIAL  RAILROADS",  etc.  (act),  sec.  15:  289. 
Informal  complaints,  kinds  of:  98. 

special  reparation :  99. 

filing  of,  prevents  running  of  limitations  provision:  99. 

evidence  in:  180. 

Information  and  belief,  matters  may  be  alleged  on :  106. 
Information  to  parties,  rule  of  practice  respecting:  381. 
INITIAL  CARRIER  has  recourse  upon  carrier  responsible  for  damage 

(act),  sec.  20:294. 
Injunctions,  power  of  courts  to  issue :  241. 

practice  in:  253. 

against  enforcement  of  the  orders  of  Commission,  to  be  heard  be- 
fore three  judges:  243. 

preliminary,  usually  granted  on  terms:  253. 

to  enjoin  departures  from  published  tariffs,  list  of  cases :  243. 
INJUNCTION  compelling  obedience  to  order  (act),  sec.  16:  290. 

notice  to  Commission,  sec.  16 :  290. 

suit  for  damages  not  interfered  with  by,  sec.  3,  Elkins'  law:  305. 

to  restrain  rebates,  sec.  3,  Elkins'  law.  305. 
Inspectors  of  safety  appliances:  8. 
Instrumentalities  and  facilities  of  shipment  or  carriage  included  in 

"transportation":  34. 
INTERCHANGE  OF  TRAFFIC  (act),  sec.  3:  281. 
INTERCHANGEABLE  TICKETS  (act),  sec.  22:  297. 
Interior  Department,  Commission  formerly  part  of:  3. 
INTERLOCUTORY  ORDER,  notice  of  appeal  from  (act),  sec.  16:  290. 

See  also  Injunction. 
Interlocutory  orders,  kinds  of:  139. 

Interpretation  and  construction  of  act  to  regulate  commerce,  purpose 
of  act  to  be  considered :  68. 

by  courts,  comment  of  Commission  on :  67. 

See  Construction  of  act  to  regulate  commerce. 
INTERSTATE  CHARACTER  of  shipment  preserved  (act),  sec.  7:  284. 
Interstate  commerce,  in  matter  of,  the  United  States  are  but  one  coun- 
try: 19  (Note). 


INDEX  467 

[Eeferences  are  to  pages] 

Interstate  commerce — continued. 

certain  regulatory  powers  over,  are  exercised  by  Department  of 
Commerce  and  Labor:  4. 

property  when  it  has  begun  to  move  as  such  is:  41. 

handled  by  intrastate  carrier  makes  carrier  subject  to  act  to  regu- 
late commerce:  37  (Instance). 

Interstate  Commerce  Commission,  authority  of,  under  hours  of  labor 
act:  59. 

over  street  railways  in  District  of  Columbia :  58. 

to  inquire  into  management  of  carriers:  50. 

must  be  in  creating  statute :  17. 

under  ash  pan  act:  58. 

to  approve  certain  interlocking  switches:  56. 

under  safety-appliance  acts:  54. 

to  investigate  block  signal  systems:  55. 

to  modify  notice  in  change  of  rates :  48. 

under  act  to  promote  safe  transportation  of  explosives :  59. 

respecting  accident  reports :  56. 

under  joint  resolution  respecting  discriminations  in  coal  and 
oil:  57. 

under  act  to  aid  construction  of  railroad  and  telegraph  to  Pa- 
cific Ocean :  52. 

duties  under  acts  other  than  act  to  regulate  commerce :  51. 

non- judicial  powers  of:  Chapter  III,  47-50. 

executive  duties  of:  47. 

administrative  duties  of:  47. 

supervisory  and  regulatory  powers:  49. 

auxiliary  powers  of:  50. 

briefs,  rule  of  practice  respecting :  379. 

costs,  none  before:  130. 

general  investigations  on  its  own  motion :  24. 

opinion  of,  must  have  findings  of  fact  in  reparation  cases :  128. 

divisions  in  office  of :  7-9. 

decisions  of:  10. 

administrative  rulings  and  opinions :  11. 

annual  reports  of:  11. 

conference  rulings  of:  11. 

publications  of:  12. 

independent  of  Executive  Departments:  3. 

part  of  Interior  Department  prior  to  1889 :  3. 

reports  direct  to  Congress:  3. 

will  not  enforce  constitutional  provisions  of  State :  20. 


468  INDEX 

[References  are  to  pages] 

Interstate  Commerce  Commission — continued. 

sole  judges  of  reasonable  rates :  20. 

proceedings  of,  in  part  judicial,  in  part  legislative,  in  part  admin- 
istrative: 15. 

legal  status  of:  16. 

analogy  of,  to  courts  of  equity :  16. 

not  a  court:  16  (Note). 

no  longer  an  inquisitorial  body:  16  (Note). 

weight  given  by,  to  decisions  of  courts:  46. 

examiners  of,  may  administer  oaths,  examine  witnesses,  and  re- 
ceive testimony :  13. 

sessions  of:  12. 

docket  of:  14. 

not  bound  by  obiter  opinions  of  courts:  45  (Instance). 

can  not  award  counsel  fees :  130. 

Rules  of  Practice  before:  374;  381. 

may  investigate  and  recommend,  although  not  having  authority 
to  make  an  order:  17. 

may  ask  Attorney-General  to  bring  suits  for  mandamus  under 
section  20:  48. 

may  inspect  accounts  of  carriers  subject  to  act  to  regulate  com- 
merce :  49. 

may  require  reports  from  carriers  subject  to  act  to  regulate 
commerce:  49. 

may  determine  form  of  schedules:  49. 

may  consider  whether  advanced  rates  result  from  concert  of  ac- 
tion of  carriers:  61  (Instance). 

may  impose  conditions  where  cases  are  dismissed  at  request  of 
parties:  138. 

may  employ  special  counsel:  50. 

may  ask  aid  of  court  to  compel  obedience  to  its  subpoena :  50. 

may  determine  as  to  switch  connections:  50. 

courts  unfavorable  to  implied  powers  for :  17. 

interpretation  and  construction  of  act  by :  67 ;  68. 

power  to  award  reparation  construed:  30;  31  (Instance). 

orders  for  reparation  must  be  based  on  findings  of  fact:  30. 

orders  for  reparation  do  not  have  validity  of  judgments :  30. 

exercises  discretion  as  to  time  reparation  shall  begin :  130. 

questions  which  it  will  not  determine :  42. 

comity  between,  and  the  courts:  45. 

comity  between,  and  State  railway  commissions:  44. 

relation  to  Sherman  antitrust  law:  60. 


INDEX  469 

[Keferences  are  to  pages] 

Interstate  Commerce  Commission — continued. 

is  not  charged  with  enforcing  customs  and  immigration  laws :  63. 

looks  to  substance,  not  form,  of  relations  of  carriers :  70. 

no  contempt  before:  50. 

proceedings  in  a  case  before :  97. 

questions  decided  by  court  of  appeals  binding  on:  155  (Instance). 

does  not  consider  itself  bound  by  doctrine  of  stare  decisis :  154. 

See  Evidence  (Commission) ;  Jurisdiction  (Commission) ;  Plead- 
ing (Commission);  Orders;  Rehearings;  Complaint;  An- 
swers; Parties. 

INTERSTATE  COMMERCE  COMMISSION  (act),  decisions  and  reports  to  be 
published,  sec.  14:  288. 

employees,  sec.  18 :  294. 

enforce  act,  sec.  12 :  286. 

enlargement  of,  sec.  24:  298. 

established,  sec.  11 :  286 ;  sec.  24 :  298. 

expenses,  how  paid,  sec.  18 :  294. 

fees  of  witnesses,  sec.  18 :  294. 

findings  of  fact,  sec.  14:  288;  sec.  16:  290. 

form  of  procedure,  sec.  17:  293. 

institution  of  inquiries,  sec.  13 :  288. 

investigations  by,  sec.  12 :  286 ;  sec.  13 :  288 ;  sec.  18 :  294. 

just  regulations  and  practices  prescribed  by,  sec.  15:  289. 

may  waive  fourth  section,  sec.  4 :  282. 

money  damages  awarded  by,  sec.  16 :  290. 

oath  administered  by,  sec.  17:  293. 

offices  and  supplies,  sec.  19 :  294. 

order.     See  Order  of  Commission. 

qualifications,  sec.  11:  286;  sec.  24:  298. 

rehearings,  sec.  16a:  293. 

report,  annual,  to  Congress,  sec.  21 :  297. 

report  of  investigations,  sec.  14 :  288. 

salaries,  sec.  11 :  286 ;  sec.  24.  298. 

seal,  sec.  17 :  293. 

Secretary,  see.  17:  293. 

service  of  orders,  sec.  16 :  290. 

service  of  reports,  sec.  14:  288. 

sessions  of,  sec.  19 :  294. 

special  agents  and  examiners  of.    See  Examiners. 

special  counsel,  sec.  16:  290. 

suits  against.    See  Suit. 

terms  of  office,  sec.  11 :  286 ;  sec.  24 :  298. 


470  INDEX 

[Beferences  are  to  pages] 

INTERSTATE  COMMERCE  COMMISSION  (act) — continued. 

testimony  before,  sec.  12:  286;  sec.  17:  293;  sec.  3,  Elkins'  law, 
305 ;  Immunity  acts,  300-301. 

vacancies  in,  sec.  11 :  286 ;  sec.  24 :  298. 

venue  of  suits  against,  sec.  16 :  290. 

Interterritorial  commerce  subject  to  act  to  regulate  commerce:  40. 
Interveners  may  assert  rights  independent  or  with  either  complainant 
or  defendant:  121. 

may  examine  witnesses,  adduce  testimony,  and  be  heard  in  argu- 
ment: 122. 
Intervention  by  parties  interested  in  result  permitted :  122. 

orders  permitting,  usually  granted  as  matters  of  course :  121. 

parties  defendant  may  be  made  by  compulsory:  122  (Instance). 

to  bring  in  new  parties :  121. 

forms  for:  330;  331. 
Intrastate  carrier  not  subject  to  the  act  to  regulate  commerce :  36. 

may  become  subject  to  act  to  regulate  commerce:  36  (Note). 

handling  interstate  commerce  subject  to  act:  37  (Instance). 
Intrastate  commerce,  not  within  the  power  of  Congress  to  regulate :  19. 
INTRASTATE  traffic  excluded  (act),  sec.  1:  279. 
Intrastate  transportation  of  interstate  commerce:  39  (Instance). 
Intraterritorial  commerce  formerly  not  subject  to  act  to  regulate  com- 
merce :  40. 

Introduction  part  of  formal  complaint :  101. 
INVESTIGATIONS  of  Commission  (act),  sec.  12:  286;  sec.  14:  288;  sec. 

20:  294. 
Investigation  required  in  applications  for  relief  under  long  and  short 

haul  section:  137. 

Issues  are  made  by  complaint  and  answer:  125. 
Joinder  of  complainants  permitted :  114. 
Joinder  of  issue,  none  before  Commission :  125. 
JOINDER  OF  PARTIES  (act) ,  sec.  16 :  290 ;  sec.  2,  Elkins'  law :  304. 
Joint  answers  permitted:  126. 

may  set  up  separate  defenses  for  several  defendants :  127. 
JOINT  LIABILITY  (act),  shipper  and  carrier,  sec.  10:  285. 
Joint  rates,  all  branch  roads  are  not  entitled  to:  27  (Instance). 

See  Through  route  and  joint  rates. 
JOINT  RATE  (act),  prescribed  and  apportioned,  sec.  15 :  289. 

to  be  established  by  carrier,  sec.  1 :  279. 
JOINT  TARIFF  (act).    See  Tariff. 

Judicial  notice,  matters  of  which  Commission  will  take :  145. 
matters  of,  should  not  be  pleaded :  102. 


INDEX  471 

[Beferenees  are  to  pages] 

Judicial  power,  whether  Commission  exercises:  15. 

Judiciary  acts  enumerated:  191  (Note). 

"Jurisdiction,"  sense  in  which  used  as  applied  to  Commission:  15. 

Jurisdiction  of  Commission,  nature  of:  16. 

not  clearly  defined:  37. 

should  be  pleaded:  18. 

limited:  18. 

not  precluded  by  receivership:  35  (Instance). 

not  precluded  by  Federal  charter  of  carrier:  35  (Instance). 

none  over  commerce  wholly  within  one  State :  35. 

as  affected  by  character  of  commerce :  36. 

want  of  may  prevent  determination  of  questions :  43  (Instance) . 

territorial:  19. 

geographical  limits  of:  19. 

has  none  over  intrastate  commerce :  20. 

to  grant  relief  from  long  and  short  haul  section :  25. 

exclusive,  in  applications  under  long  and  short  haul  section :  21. 

to  establish  through  route  and  joint  rates :  26. 

to  determine  entire  controversy:  22. 

exclusive,  to  correct  regulations  and  practices  of  carriers:  21. 

may  be  apparently  concurrent  with  State  courts  or  commissions 
respecting  switch  connections:  22. 

not  affected  by  amount  in  controversy:  18. 

probably  exclusive,  where  amount  in  controversy  is  less  than  stat- 
utory sum:  20. 

not  as  broad  as  commercial  power  of  Congress:  19. 

over  carriers  handling  export  and  import  commerce:  34. 

none  over  commodities  intended  for  transportation  to  another 
State:  40  (Instance). 

want  of  may  be  raised  by  Commission  of  its  own  motion :  18. 

to  make  an  order  on  petition :  26. 

to  determine  entire  controversy:  22. 

to  make  orders  for  allowances  to  owners  of  property :  21 ;  27. 

to  apportion  divisions  of  joint  rates :  27. 

to  award  reparation :  27. 

miscellaneous  judicial  powers:  28. 

to  entertain  complaint  against  rate  effective  in  future:  21. 

effect  of  want  of :  17. 

want  of  does  not  preclude  general  investigation:  25  (Instance). 

if  doubtful  will  not  act:  17  (Note). 

over  carriers  essential  to  reparation:  31  (Instance). 

statutory:  17  (Note). 


472  INDEX 

[Eeferences  are  to  pages] 

Jurisdiction  of  Commission— continued. 

exclusive  to  compel  through  route  and  joint  rates :  21. 
to  make  orders  under  sec.  1 :  27. 
to  make  orders  under  sec.  16 :  27. 
to  change  or  modify  an  order :  29. 
to  award  reparation:  29. 

orders  for  reparation  must  be  based  on  findings  of  fact :  20. 
Jurisdiction  of  courts  defined:  194  (Note). 
JURISDICTION  (act).    See  Court;  Criminal  provisions;  Suit. 
Jurisdiction  of  Federal  courts,  authority  of,  derived  from  Constitution 

and  acts  of  Congress:  191. 
test  of  equitable:  245  (Note). 
to  restrain  rates  effective  in  future :  21. 
to  award  damages  under  interstate  commerce  act :  20. 
essentials,  to  confer :  196. 

essential  that  proper  service  be  had:  196  (Instance). 
nature  of,  in  enforcing  order  of  Commission :  234. 
difference  as  to  issuance  of  legal  and  equitable  writs:  203  (Note). 
concurrent  with  Commission,  when :  21. 
at  law  conferred  by  act  to  regulate  commerce :  197. 
to  fix  rates  for  transportation :  195  and  Note. 
in  mandamus :  203. 

no  jurisdiction  to  issue  mandamus  to  compel  filing  of  annual  re- 
ports of  carriers  prior  to  June  29,  1906:  48  (Note). 
in  suits  for  forfeitures:  202. 
to  grant  injunctions:  241. 
under  Elkins'  law,  to  enjoin  discriminations  probably  confined 

to  existing  and  not  threatened :  192. 
have  jurisdiction  to  protect  interstate  commerce  at  suit  of  United 

States:  192  (Instance). 

to  entertain  proceedings  to  restrain  rates  effective  in  future :  21. 
to  enjoin  rates  effective  in  future :  207. 
to  enjoin  order  of  Commission :  205. 
at  suit  of  carriers  to  protect  commerce :  192  (Instance), 
to  restrain  taking  effect  of  unjust  rates  and  practices:  208. 
none  to  restrain  unjust  rates  after  they  have  taken  effect :  209. 
to  enjoin  violation  of  pooling  section :  196. 
exclusive  in  Federal,  in  criminal  violations  of  act  to  regulate 

commerce:  193. 
Federal,  is  exclusive  to  enforce  rights  granted  by  act  to  regulate 

commerce:  193;  195. 
State  and  Federal,  concurrent  if  to  enforce  rights  existing  but  not 

granted  by  act  to  regulate  commerce :  193 ;  195. 


INDEX  473 

[Eef  erences  are  to  pages] 

Jurisdiction  of  Federal  courts — continued. 

no  jurisdiction  prior  to  Elkins'  law  to  enjoin  discriminations:  192 
(Instance)  ;  200  (Instance). 

no  jurisdiction  on  removal  if  none  in  State  court :  233. 

not  conferred  by  consent :  233. 

none  to  change  or  modify  order  of  Commission:  234  (Instance). 
Jurisdiction  of  State  courts  may  be  apparently  concurrent  in  certain 
cases  with  Commission :  22. 

none  over  interstate  commerce :  22. 
Jurisdictional  facts  ought  to  be  pleaded :  18. 

Jurisdictional  questions  may  be  raised  by  notice  in  nature  of  demurrer : 
123  and  Note. 

may  be  raised  after  answer  on  merits :  124. 
Justice,  Department  of,  prosecutes  cases  of  criminal  violation  of  act 

to  regulate  commerce :  8. 

Justification  of  rate  or  practice  on  one  ground  does  not  preclude  evi- 
dence of  other  grounds:  125. 
Legal  bibliography:  395. 

LEGAL  RATE  is  one  filed  (act),  sec.  1,  Elkins'  law:  303. 
Legal  status  of  Commission :  16. 

Legislation  under  commerce  clause  of  Constitution:  3. 
LIABILITY,  joint,  for  damages  (act),  sec.  10:  285. 

discrimination.     See  Rebates. 

goods  received,  sec.  20 :  294. 

corporation,  sec.  1,  Elkins'  law:  303. 

shipper,  sec.  10:  285;  sec.  1,  Elkins'  law:  303. 

Limitations  of  actions  (Commission),  general  principles  of  apply  to 
present  statute:  95  (Instance). 

former  rule  respecting:  93  (Instance). 

no  provision  for,  prior  to  act  of  June  29,  1906 :  92. 

filing  of  petition  is  beginning  of  suit:  95  (Instance). 

can  not  be  defeated  by  amendment  of  bill  of  particulars :  110. 

present  in  reparation  cases:  93. 

may  be  considered  in  electing  forum:  91. 

prevented  from  running  by  intervening  petitions  and  particulars 
of  shipments :  134. 

supplemental  bills  of  particulars  to  prevent  running  of :  130. 

filing  of  informal  complaint  prevents  running  of :  99. 
Limitations  of  actions  (courts),  generally:  238. 

courts  follow  State  statutes  of :  92. 
LIMITATIONS  OP  ACTIONS  for  money  damages  (act),  sec.  16:  290. 


474  INDEX 

[Beferences  are  to  pages] 

Long  and  short  haul  section,  jurisdiction  to  grant  relief  from :  25. 

applications  from  relief  under:  25;  137. 

definite  meaning  of  uncertain :  25  (Note). 

applicable  only  to  special  cases:  25  (Instance). 

evidence  required  in  applications  for  relief  under:  170. 

if  order  of  Commission  is  burdensome  carrier  should  apply  for 

relief  under:  138  (Instance). 
LONG  AND  SHORT  HAUL  (act),  sec.  4:  282. 

Loss  OR  DAMAGE  (act),  liability  for  freight  received,  sec.  20:  294. 
Mandamus,  jurisdiction  of  courts  in:  203. 

jurisdiction  to  issue  writs  of,  given  by  act :  203. 

must  be  ancillary  to  preacquired  jurisdiction :  203. 

cases  in  which  used:  204. 

may  issue,  to  compel  furnishing  of  coal  cars:  204  (Instance). 

to  secure  writ  discrimination  must  be  made  out:  204  (Instance). 

suits  in,  may  be  brought  by  Attorney-General  at  request  of  Com- 
mission: 48. 

to  compel  filing  annual  reports,  cases  brought :  204. 

jurisdiction  to  issue,  to  compel  filing  of  annual  reports  not  con- 
ferred by  act  prior  to  June  29,  1906:  48  (Note). 
MANDAMUS  (act)  to  compel  compliance  with  act,  sec.  20:  294. 

to  compel  compliance  with  order  of  Commission,  sec.  16 :  290. 

to  compel  furnishing  cars  and  movement  of  traffic,  sec.  23 :  298. 
Manner  in  which  carriers  must  be  engaged  to  be  subject  to  act  to  regu- 
late commerce:  33. 

Matters  may  be  alleged  on  information  and  belief:  106. 
MAXIMUM  RATE  (act).    See  Kates. 

Measure  of  damages  for  unreasonable  rates:  32  (Instance). 
Merits,  answering  on,  does  not  preclude  raising  jurisdictional  ques- 
tions :  124. 

Mexico  an  adjacent  foreign  country:  19. 
MILEAGE  (act),  tickets,  sec.  1:  279. 

to  witness,  sec.  18:  294. 

MILITARY  TRAFFIC,  preference  to  (act),  sec.  6:  282. 
MISDEMEANOR  (act).    See  Criminal  provisions. 
Mis  joinder  of  parties  cause  delay :  112 ;  114. 
Money  damages.    See  Reparation. 
MONEY  DAMAGES  (act),  accrued  claims,  sec.  16:  290. 

attorney's  fees,  sec.  8:  284;  sec.  16:  290. 

award  of,  by  Commission,  sec.  16 :  290. 

complainant  need  not  claim,  sec.  13 :  288. 


INDEX  475 

[Eef  erences  are  to  pages] 

MONEY  DAMAGES  (act) — continued. 

costs  not  taxed  on  petitioner  in  circuit  court,  sec.  16 :  290. 

findings  of  fact,  sec.  14 :  288 ;  sec.  16 :  290. 

joinder  of  parties,  sec.  16:  290;  sec.  2,  Elkins'  law:  304. 

joint  liability  of  shipper  with  carrier,  sec.  10 :  285. 

jurisdiction  of  courts.     See  Courts;  Suit. 

limitations  of  actions,  sec.  16:  290. 

service  of  Commission 's  order,  sec.  16 :  290. 

service  of  process,  sec.  16 :  290. 

under  sec.  1,  Elkins'  law:  303. 

MONTHLY  AND  SPECIAL  EEPORTS  of  carriers  (act),  sec.  20:  294. 
Motions,  various  kinds  of:  129. 

ordinarily  granted  as  of  course  but  not  where  rights  will  be  af- 
fected: 130. 

to  strike  out  may  be  used  for  objectionable  matter :  108. 

for  leave  to  file  intervening  petition  may  be  used:  122  (Note). 

for  time  to  intervene,  form  of :  330. 

for  leave  to  intervene,  form  of:  331. 
Multifariousness,  not  objectionable:  108. 

practice  in  avoiding :  108. 

National  Association  of  Railway  Commissioners,  proceedings  of :  12. 
"NEW  SECTION"  (act),  sec.  23:  298. 
Nonjoinder  of  parties  cause  delay :  112. 

Notice  and  opportunity  to  be  heard  in  general  investigations  is  com- 
pliance with  statute:  24  (Instance). 
Notice  in  nature  of  demurrer,  generally :  111. 

functions  of:  123. 

on  hearing  of,  facts  alleged  deemed  to  be  true :  123. 

results  of  determination  of:  124. 

form  of:  329. 

Notice  of  application  for  court  order,  form  of :  372. 
NOTICE  (act)  for  injunction  or  interlocutory  order,  sec.  16:  290. 

of  change  in  rates,  sec.  6 :  282. 

Notice  of  change  in  rates,  Commission  has  authority  to  modify :  48. 
Notice  of  order  why  injunction  should  not  issue,  form  of:  373. 
Notice  of  passage  of  order,  form  of :  373. 
Notice  of  taking  depositions,  form  of :  330. 
Notice  to  produce,  usual  rules  respecting  are  followed :  158. 

voluminous  records  will  not  be  ordered:  158  (Instance). 
Oaths  may  be  administered  by  Commission  or  examiners :  13 ;  28. 
OATH  (act),  administered  by  Commissioner,  sec.  17:  293. 

administered  by  examiner,  sec.  20 :  294. 

of  carrier  to  annual  report,  sec.  20 :  294. 


476  INDEX 

[References  are  to  pages] 

Offenses  under  act  to  regulate  commerce,  list  of :  211. 
OFFICE  AND  SUPPLIES  of  Commission  (act),  sec.  19:  294. 
Oil,  carriers  engaged  in  transportation  of,  subject  to  act :  32. 
Oklahoma  and  Indian  territories,  Commission  to  approve  certain  in- 
terlocking switches  in :  51 ;  56. 

Opinions,  obiter,  of  courts  do  not  bind  Commission :  45  (Instance). 
Orders  of  Commission,  purposes  of:  139. 

kinds  of:  140. 

may  be  interlocutory  or  final:  139. 

final,  what  are:  139. 

prepared  in  office  of  Commission :  140. 

will  not  be  granted  (a)  where  carrier  has  conceded  relief;  (fe) 
upon  issues  without  proof;  (c)  where  answer  satisfies  com- 
plainant; (d)  where  causes  of  complaint  removed;  or  (e) 
where  inequality  of  rates  has  been  corrected :  140. 

may  issue  where  part  only  of  relief  asked  has  been  granted :  140. 

duration  of :  140. 

duration  of,  discretion  of  Commission  in :  141. 

duration  of,  limited  by  statute :  141. 

under  former  statute  might  operate  indefinitely:  141  (Note). 

taking  effect  of,  discretion  of  Commission  as  to  time  of:  141. 

for  the  payment  of  money  not  subject  to  time  limit :  141. 

may  fix  time  during  which  relief  conceded  shall  prevail :  141. 

frequently  accompanied  by  permission  waiving  provisions  re- 
specting filing  rates:  141. 

may  be  composite  as  to  defendants :  140. 

awarding  reparation :  139. 

for  reparation  must  be  based  on  findings  of  fact :  30. 

changing  classification:  139. 

changing  rates  or  practices :  139. 

establishing  through  route  and  joint  rates :  139. 

respecting  rates  and  practices  of  carriers :  25 ;  26. 

respecting  allowances  to  owners  of  property :  27. 

taking  effect  of,  may  be  suspended  to  permit  carriers  to  adjust 
rates:  24  (Instance). 

not  prevented  by  pendency  of  suit  in  court:  46  (Instance). 

none  will  be  made  where  carriers  have  right  to  be  heard  and  are 
not  made  parties:  119  (Instance). 

power  of  Commission  not  exhausted  by  having  once  passed  on 
subject:  184  (Instance). 

regularly  made  and  duly  served,  constitutionality  of  provision 
respecting  enforcing  doubtful:  197  (Note). 


INDEX  477 

[Keferences  are  to  pages] 

Orders  of  Commission — continued. 

permitting  intervention  usually  granted  as  matter  of  course :  121. 

compliance  with  rule  of  practice  respecting:  380. 

modification  of:  184. 

courts  have  no  power  to  change  or  modify:  234  (Instance) ;  235. 

formerly  not  self -executing :  235. 

list  of  cases  brought  to  enforce :  235. 

suits  to  enjoin,  expediting  act  applicable  to:  206. 

list  of  suits  brought  to  enjoin :  206. 

courts  not  mere  executioners  of:  234  (Instance). 

proceedings  to  enforce,  are  independent  and  original  suits :  234. 

dismissing  petition:  139. 

dismissing  petition  without  prejudice:  139. 

proceedings  after,  generally :  Chapter  VIII,  181-188. 

proceedings  after,  application  for  rehearing:  181. 

want  of  mutuality  in  statute  respecting:  181. 

ORDER  OF  COMMISSION  (act),  binds  all  parties,  sec.  2,  Elkins'  law: 
304. 

carrier  to  comply  with,  sec.  16 :  290. 

Commission  may  modify  or  suspend,  sec.  16 :  290. 

court's  power  over,  sec.  15:  289. 

division  of  joint  rate,  sec.  15 :  289. 

for  payment  of  money,  suit  on,  sec.  15 :  290. 

how  served  (by  mail),  sec.  16:  290. 

other  than  for  payment  of  money,  suit  on,  sec.  16 :  290. 

punishment  for  noncompliance  with,  sec.  16 :  290. 

reasonable  rates  and  practices,  sec.  15 :  289. 

venue  of  suits  to  set  aside,  sec.  16 :  290. 

court  binds  all  parties,  sec.  2,  Elkins'  law :  304. 
Order  of  court,  notice  of,  why  injunction  should  not  issue :  339. 

notice  of  passage  of,  form  of :  373. 

notice  of  application  for,  form  of:  372. 

why  injunction  should  not  issue,  form  of:  371. 
Order  of  evidence  before  Commission :  150. 
ORGANIZATION  of  company  (act),  in  annual  report,  sec.  20:  294. 
Owner  of  property,  reasonable  charge  to  be  paid  to,  Commission  may 

determine:  21. 
Ownership  does  not  affect  applicability  of  act  to  regulate  commerce  as 

to  instrumentalities  and  facilities  of  shipment :  34. 
OWN  MOTION  (act),  Commission  to  investigate  on,  sec.  13:  288. 
Papers,  copies  of,  filed  with  Commission,  rule  respecting :  380. 
Parol  evidence,  rule  enforced  by  Commission :  156. 


478  INDEX 

[Beferences  are  to  pages] 

Particulars,  bill  of.    See  Bill  of  particulars. 
Parties,  rule  of  practice  respecting:  374. 

choice  of  important:  112. 

how  described:  112. 

corporations,  how  alleged :  112. 

partnership,  how  stated:  112. 

mis  and  non  joinder  of,  results  of:  112;  118  (Instance). 

effect  of  failure  to  object  to :  120. 

want  of  proper,  prevents  relief:  117  (Instance). 

consent  of,  may  permit  award  of  reparation :  133  (Instance). 

cases  may  be  dismissed  at  request  of:  138. 

are  bound  by  admissions  in  pleadings :  109. 

those  in  fiduciary  capacity  as:  114. 

new,  may  be  brought  in  by  intervention,  amendment,  or  substi- 
tution: 121. 

amendment  as  to,  may  be  permitted  after  initial  hearing :  121. 

one  improperly  made  such  may  be  relieved:  114. 
Complainant,  who  may  be :  112. 

on  behalf  of  others:  113. 

may  not  have  personal  interest:  112  (Note). 

need  have  no  real  grievance:  113  (Instance). 

associations  may  be,  although  having  no  direct  interest :  113. 

association  in  violation  of  antitrust  law  may  be :  113  (Note) . 
Defendants,  who  may  be:  115. 

who  must  be:  120. 

are  generally  common  carriers:  115. 

operating  carriers  are :  114. 

handlers  of  transportation  may  be :  116. 

express  companies  may  be:  116. 

sleeping-car  companies  may  be :  116. 

all  carriers  forming  connecting  line  should  be  made :  117. 

carriers  handling  traffic  to  basing  points  not  necessary,  in  pro- 
ceeding attacking  rates  beyond:  117  (Instance). 

receivers  of  carriers  are  proper:  118  (Instance). 

classification  committee  not  a  proper:  118  (Instance). 

in  proceedings  to  change  classification:  118  (Instance). 

one  interested  in  rate  or  regulation  may  be :  99 ;  115  (Note) . 

how  pleaded,  when  numerous:  113. 

unless  proper,  be  before  Commission  no  order  will  be  made :  131. 

carriers  may  be  made  by  compulsory  intervention :  122. 

subsidiary  carrier  is  proper  but  not  necessary:  120. 

those  who  can  not  be  made :  119. 


INDEX  479 

[Beferenees  are  to  pages] 

Parties — continued. 

when  water  carriers  are  proper:  118  (Instance). 

in  applications  under  fourth  section  all  carriers  operating  through 

route  should  be  made:  118  (Instance), 
unnecessary  to  make  all,  having  same  rate  or  practice :  117. 
all  carriers  participating  in  through  traffic  are  proper  but  not 

necessary  parties :  247. 

although  beyond  geographical  jurisdiction  of  court :  247. 
defendant  may  be  original  complainants :  247. 
in  cases  brought  to  enforce  order  of  Commission :  246. 
in  cases  involving  interstate  commerce  generally :  246. 
in  suits  to  set  aside,  annul,  or  enjoin  order  of  Commission,  carrier 

may  be  complainant :  247. 
under  interstate  commerce  act:  246. 

under  sec.  3,  Elkins'  law,  process  enforceable  against  all  interest- 
ed in  traffic :  247. 

PARTIES  may  be  joined  (act),  sec.  16:  290;  sec.  2,  Elkins'  law:  304. 
Partnership,  how  alleged  in  pleadings :  112. 
PASSENGER  (act).    See  Tariff;  Free  transportation. 
Passengers  or  property,  specified  character  of  commerce  in  act  to  reg- 
ulate commerce:  33. 
PECUNIARY  interest  of  Commissioner  in  investigation  (act),  sec.  17: 

392. 
PENALTY  (act),  compulsory  testimony  cases,  sec.  12:  286;  Immunity 

acts:  300-301. 

divulging  by  examiner,  sec.  20 :  294. 
failure  to  file  annual  report,  sec.  20:  294. 
failure  to  keep,  file,  and  exhibit  accounts,  sec.  20:  294. 
failure  to  publish  rates,  sec.  1,  Elkins'  law:  303. 
false  entry,  etc.,  accounts,  sec.  20:  294. 
for  noncompliance  with  Commission 's  order,  sec.  16 :  290. 
free  passes,  sec.  1 :  279. 
interchangeable  tickets,  sec.  22 :  297. 
rebates,  sec.  10:  285;  sec.  1,  Elkins'  law:  303. 
violations  of  act,  sec.  10:  285. 
PENDING  CASES  not  affected  by  amendment  (act),  sec.  10,  Act  June 

29,  1906:  299;  sec.  4,  Elkins'  law:  306. 
Petition,  intervening,  form  of:  331. 

See  Complaint. 
Pipe  lines,  subject  to  control  of  Commission:  4. 

if  transporting  certain  commodities  subject  to  act  to  regulate  com- 
merce: 32. 


480  INDEX 

[References  are  to  pages] 

PIPE  LINES  (act),  sec.  1:  279;  sec.  6:  282. 

Pleading  (Commission),  to  be  in  simplest  form  consistent  with  cer- 
tainty: 98. 

consist  of  complaint  and  answer :  98. 

time  of  filing :  110. 

no  technical  rules  of,  apply  before  Commission :  108. 

dilatory  pleas  not  favored:  111. 

averment  necessary  to  give  jurisdiction:  101. 

formal  defects  in:  108. 

schedules,  tariffs  and  contracts,  how  pleaded:  104. 

technical  terms  and  abbreviations  in :  104. 

no  departure:  108. 

multifariousness  not  objectionable:  108. 

disclaimer  may  be  used  by  one  improperly  made  defendant :  125. 

effect  of  omission  to  make  proper  allegations:  106. 

matters  not  known  to  pleader:  106. 

matters  peculiarly  within  knowledge  of  adverse  party:  106. 

character  of  evidence  admissable  under:  149. 
Complaint,  rule  of  practice  respecting :  375. 

parts  of:  101. 

allegations  of :  102. 

verification  no  longer  required :  106. 

anticipated  defences:  104. 

complaint  should  advise  defendant  of  nature  of  complaint :  103. 

should  not  be  too  broad:  102  (Instance). 
^v^  must  state  reasonable  ground  for  investigation :  102. 
of  unreasonable  rate  should  state  what  would  be  reasonable :  103. 

insufficiently  charging  violation  of  act  will  be  dismissed:  103. 

in  reparation  cases  allegations  must  be  specific:  130. 

general  averments  will  not  sustain  claim  for  reparation :  103. 

in  reparation  cases  bill  of  particulars  should  accompany :  130. 
Prayers  for  relief  should  be  in  harmony  with  relief  to  which  com- 
plainant entitled :  105. 

leniency  respecting  relief  under  general  prayer:  105. 

may  be  too  broad  to  admit  granting :  105. 

should  not  ask  relief  which  Commission  can  not  grant :  106. 
Answers,  rule  of  practice  respecting:  375. 

should  be  precise  and  show  defense:  104  (Instance). 

may  be  by  way  of  disclaimer,  traverse  or  confession  and  avoid- 
ance: 123. 

pleading  different  defenses :  123, 

time  for:  123. 


INDEX  481 

[References  are  to  pages] 

Pleading  (Commission) — continued. 
Answers — continued. 

service  of :  125. 

effect  of,  to  part  only  of  petition :  125. 

failure  to,  effect  of :  124. 

generally  concedes  right  of  complainant  to  file  petition :  124. 

usual  admissions  in:  124. 

usually  denies  any  violation  of  antitrust  law :  124. 

on  merits  does  not  preclude  raising  jurisdictional  question :  124. 

failure  to  file  will  not  prevent  fixing  hearing :  127. 

joint,  permitted:  126. 

joint,  may  set  up  separate  defenses  for  several  defendants :  127. 

exceptions  to,  not  customary :  126. 
Replication,  none  permitted :  125. 

leave  asked  to  file,  was  denied:  126  (Instance). 
Notice  in  nature  of  demurrer,  rule  of  practice  respecting :  375. 

See  Notice  in  nature  of  demurrer. 
Parties.    See  Parties. 
Amendment,  rule  of  practice  respecting:  376. 

liberality  of  Commission  respecting:  107. 

as  to  parties,  may  be  permitted  after  initial  hearing:  121. 

permitted  to  change  title  of  official  of  carrier :  108. 

not  necessary  to  bring  in  matters  already  pleaded :  107  (Note) . 

permitted  to  bring  in  receivers:  121  (Instance). 

not  permitted  to  create  new  issues :  107  (Instance) . 
Pleading  (Courts),  equity:  245. 

law:  245. 

requisites  of  bill  to  enforce  order  of  Commission :  248. 

requisites  of  bill  to  enjoin  order  of  Commission:  248. 

requisites  of  bill  to  enjoin  rate  or  practice  effective  in  future :  250. 

answer  of  carrier  to  bill  to  enforce  order  of  Commission :  251. 

answer  of  Commission  to  bill  to  enjoin  order :  250. 
Pleading  and  practice  (Commission),  generally:  Chapter  VI,  85-142. 
Pleading  and  practice  (Conrts),  generally:  Chapter  X,  245-256. 
Police  power  of  a  State,  does  compelling  switch  connection  fall  ex- 
clusively within :  22  (Note) . 
POOLING  prohibited  (act),  sec.  5:  282. 
POSTING  tariff  (act),  sec.  6:  282. 

POWER  OF  COMMISSION  to  make  inquiry  (act),  sec.  12:  286. 
Power  to  "execute  and  enforce"  is  partly  judicial,  partly  executive, 

and  partly  administrative :  16. 
POWERS,  enumeration  of,  not  exclusive  (act),  sec.  15:  289. 


482  INDEX 

[References  are  to  pages] 

Powers,  specific,  given  to  courts  by  act  to  regulate  commerce :  197. 
Practice,  Rules  of,  before  Commission :  374-381. 

service  of  papers,  rule  of  practice  concerning:  376. 

appearances  of  counsel  not  usually  required :  111. 
Practice  (Courts),  general  rules  apply  except  as  modified:  251. 

in  injunctions:  253. 

preliminary  injunctions  usually  granted  on  terms:  253. 

but  not  if  answer  denies  facts:  253  (Instance). 
Practices  of  carriers  have  been  subject  of  general  investigations :  24. 

if  in  general  use  will  not  be  condemned  when  few  carriers  are 
parties:  105. 

evidence  required  in  cases  involving:  171. 

to  receive  broad  interpretation:  69  (Instance). 

when  used  with  "regulations"  is  broad  enough  to  include  distri- 
bution of  coal  cars:  169  (Note). 

if  in  force  by  several  carriers  all  have  right  to  be  heard :  120. 

See  Regulations  and  practices. 
PRACTICES,  just  (act),  sec.  15:  289. 
Prayers  of  a  complaint :  101 ;  105. 

ought  not  to  be  for  relief  which  Commission  can  not  grant :  106. 

should  be  in  harmony  with  relief  grantable  by  Commission :  105. 

may  be  too  broad  to  admit  granting  relief :  105. 
.      forms  of:  326;  332. 

PREFERENCE  and  expedition  of  military  traffic  (act),  sec.  6:  282. 
Prejudice  or  disadvantage,  undue  and  unreasonable,  evidence  required 

in  cases  of,  against  commodities  or  localities:  178. 
"Prescribe"  a  legislative  term:  26  (Note). 

Presumptions,  no  line  between  conclusive  and  rebuttable,  before  Com- 
mission: 152. 

in  nature  of  admission  may  arise  from  long  continued  rate  or 
practice:  109  (Instance). 

as  to  regularity  of  various  matters :  152. 

none  as  to  legality  of  rates  in  filed  tariff:  152  (Instance). 

none  as  to  legality  of  long-continued  practice:  153  (Instance). 

none  as  to  reasonableness  of  former  rates:  153  (Instance). 

none  as  to  legality  of  filed  rates:  152  (Instance). 

no  line  between  conclusive  and  rebuttable :  152. 

not  as  weighty  before  Commission  as  before  courts :  151. 

of  legality  of  official  acts:  152. 
PRIM  A  FACIE  EVIDENCE  (act),  sec.  16:  290. 
PRINTING,  posting,  and  filing  schedules  (act).    See  Tariff. 
PRIORITY  of  Commission  cases  in  Supreme  Court  (act),  sec.  16:  290. 


INDEX  483 

[References  are  to  pages] 

PRIVATE-CAR  SERVICE  (act),  see.  1:  279;  sec.  15:  289. 
Procedure  (Commission),  generally:  Part  I,  1-187. 
analagous  to  that  of  courts  of  equity :  97. 
to  be  speedy  and  not  dilatory:  97  (Instance). 
Procedure  (Courts),  generally:  Part  II,  191-268. 
general  rules  apply  except  as  modified:  251. 
injunctions:  253. 
preliminary  injunctions  will  not  be  granted  if  answer  denies 

facts:  253  (Instance). 

PROCEDURE  of  investigation  (act), -sec.  12:  286. 
of  suit.    See  Suit, 
to  conduce  to  justice,  sec.  17 :  293. 
Proceedings  after  order  other  than  reparation :  185. 
granting  relief  in  reparation  cases :  185. 
dismissing  petition:  186. 
dismissing  petition,  defeated  complainant  perhaps  may  have  cer- 

tiorari:  187. 

Proceedings  in  a  case  before  Commission :  97. 
Proceedings  of  Commission,  nature  of:  15. 
Proof,  necessity  for,  in  issues  of  fact:  165. 

may  be  taken  by  Commission  although  no  answer  filed :  124. 
Property,  Commission  may  make  order  respecting  allowance  to  owners 

of,  for  services:  27. 

reasonable  charge  to  be  paid  to  owner  of,  Commission  to  deter- 
mine: 21. 
when  it  has  begun  to  move  to  another  State  becomes  interstate 

commerce :  41. 
ceases  to  be  interstate  commerce  when  incorporated  in  and  is 

mixed  with  other  property  of  State :  41. 

Protest  not  necessary  to  entitle  to  reparation:  133  (Instance). 
Public  has  right  to  be  heard,  and  notice  of  hearing  may  be  published 

for:  121  (Instance). 

may  be  heard  in  any  proceeding,  particularly  in  general  investi- 
gations: 122. 

PUBLIC  RECORDS,  etc.,  filed  with  Commission  (act),  sec.  16:  290. 
PUBLICATION  of  decisions  of  Commission  (act),  sec.  14:  288. 
Publications  of  Commission :  12. 
PUBLISHED  rates  (act).    See  Tariff. 

Purposes  of  act  to  regulate  commerce  to  be  considered,  its  interpreta- 
tion and  construction:  68  (Instance). 

Qualifications  of  members  of  Commission :  7, 


484  INDEX 

[Eeferences  are  to  pages] 

Questions  decided  by  court  of  appeals  binding  on  Commission :  155. 
Questions  of  jurisdiction  may  be  reserved  for  final  hearing :  111. 
Questions  which  Commission  will  not  determine :  42. 
Kailroad,  meaning  of  term:  33. 

included  under  act  to  regulate  commerce:  33. 

correct  titles  of  leading :  391 ;  394. 
"RAILROAD"  defined  (act),  sec.  1:  279. 
Kailroad  discriminations  in  coal  and  oil :  52 ;  57. 
Eailway  association  territory  may  be  used  to  describe  locality  in  which 

carriers  operate:  112. 

Railway  commissions,  State,  character  of,  in  1886 :  6. 
Eailway  commission,  State,  may  be  party  complainant :  113. 
Railways  in  United  States  in  1902 : 12. 

State  taxation  of:  12. 

State  regulation  of:  12. 

Statistics  of,  in  United  States :  12. 
Railway  management,  complaints  against  in  1886 :  4. 
Rates  and  practices  of  carriers,  orders  respecting  may  be  made,  after 
petition  by  Commission :  26. 

orders  changing:  139. 

unjust  or  unreasonable,  effective  in  future  may  be  restrained  by 
Federal  courts:  208  (Instance). 

in  effect,  though  unjust  or  unreasonable,  courts  can  not  restrain 

the  taking  effect:  209  (Instance). 
Rates  prescribing  for  future  a  legislative  function :  15. 

effective  in  future,  practice  respecting:  21. 

notice  of  change  in,  Commission  has  authority  to  modify :  48. 

effective  in  future,  jurisdiction  of  courts  to  restrain:  21;  207. 

agreement  to  maintain,  may  be  in  violation  of  antitrust  law :  61. 

no  presumption  of  legality  of,  because  filed:  152  (Instance). 

changes  in,  require  explanation:  153  (Instance). 

former,  no  presumption  as  to  reasonableness  of:  153  (Instance). 

voluntary  reduction  of,  does  not  show  former  unreasonable :  150. 

continuance  of,  not  evidence  of  reasonableness :  150. 

alleged  to  be  relatively  unreasonable,  evidence  tending  to  show 
unreasonable  per  se  usually  received :  125. 

if  between  points  served  by  competing  carriers  all  operating  car- 
riers should  be  parties  defendant :  120. 

relation  and  advances  of,  subject  of  general  investigations :  24. 

may  be  considered  unjust  unless  explained:  152  (Instance). 

as  result  of  concert  of  action  is  not  necessarily  unreasonable :  62. 


INDEX  485 

[References  are  to  pages] 

Rates— continued. 

Unreasonable,  must  be  based  on  evidence  and  finding  that  it  was 

such  when  paid  to  secure  reparation:  130  (Note). 
elements  to  be  considered  in:  146. 

not  proven  by  changes  in,  continuance  of,  or  rebating :  150. 
complaint  alleging,  should  state  what  would  be  reasonable :  103. 
evidence  of  single  and  entire  schedule:  146  (Instance). 
Reasonableness  of,  evidence  in  cases  involving :  172. 
existing,  a  question  for  judicial  investigation :  15. 
Commission  sole  judges  of  what  is :  20. 
Commission  will  not  undertake  to  determine  of  State,  when  part 

of  a  through  rate :  44. 

RATES  charged,  reasonable  (act),  sec.  1:  279;  sec.  15:  289. 
Commission  to  determine,  sec.  15 :  289. 
filed,  deemed  legal  rate,  sec.  1,  Elkins '  law :  303. 
regulations  of,  by  carrier,  shown  in  its  annual  report,  sec.  20: 

294. 

service  of  order  of  Commission,  sec.  16 :  290. 
See  also  Tariff. 

Reargument  by  application  for  rehearing:  182. 
Reasonable  charge  to  be  paid  to  owner  of  property,  Commission  to  de- 
termine: 21. 

Reasonableness  of  existing  rate  a  judicial  question :  15. 
difficult  to  determine:  173  (Note). 

usually  predicated  on  cost  of  transportation:  195  (Note). 
Rebates  not  evidence  of  unreasonableness  of  published  tariff :  150. 
REBATES  (act),  sec.  1,  Elkins'  law:  303. 

parties  liable,  sec.  2:  281;  sec.  6:  282;  sec.  1,  Elkins'  law:  303. 

forbidden,  sec.  3,  Elkins'  law:  305. 

offering,  soliciting  or  granting,  a  crime,  sec.  10:  285;  sec.  1, 

Elkins 'law:  303. 

penalty  for,  sec.  10:  285;  sec.  1,  Elkins'  law:  303. 
Receipt  of  property,  services  in  connection  with  included  in  "trans- 
portation": 34. 
Receivers,  as  parties:  114. 

are  proper  parties:  118  (Instance). 

leave  of  court  not  necessary  to  complain  of :  118 ;  254 ;  255. 
may  be  made  parties  by  amendment:  121  (Instance), 
reparation  order  against  must  be  presented  to  courts :  32. 
RECEIVERS  AND  TRUSTEES  subject  to  act,  sec.  20 :  294. 
Receivership  of  carrier  does  not  preclude  jurisdiction  of  Commission : 
32  (Instance). 


486  INDEX 

[References  are  to  pages] 

RECEIVING  CARRIERS  liable  for  loss  or  damage  to  goods  (act),  sec.  20: 

294.    See  also  Liability. 
Record  of  case  before  Commission :  14. 
REDUCED  rates  and  passes  (act),  sec.  1:  279;  sec.  22:  297. 
Referees  or  special  commissioners,  functions  of,  akin  to  functions  of 

Commission :  16. 

REFRIGERATOR  service  (act),  sec.  1:  279. 

Refrigeration  or  icing  services  in  connection  with  included  in  "trans- 
portation": 34. 

Refund  of  overcharges  through  errors:  138. 

Regulations  and  practices  of  carriers,  exclusive  jurisdiction  of  Com- 
mission to  correct:  21. 

orders  may  be  made  respecting,  by  Commission:  26. 
REGULATION  of  rates  to  be  in  carrier's  report  (act),  sec.  20:  294. 
REGULATIONS  AND  PRACTICES  to  be  just  (act),  sec.  15:  289. 
Rehearing,  jurisdiction  of  Commission  to  grant :  28. 

rule  of  practice  respecting:  379. 

Commission  granted,  under  former  act:  28  (Instance). 

kinds  of:  182. 

application  for,  does  not  operate  as  a  stay :  28 :  181. 

reasons  for  granting  comparable  to  granting  new  trials  at  com- 
mon law:  181  (Note). 

application  for,  after  order  proper:  181. 

in  applications  for,  no  oral  argument  provided :  182. 

will  not  be  granted  where  evidence  is  cumulative  or  reargument 
would  not  change  result:  182  (Instance). 

petition  for,  to  introduce  additional  evidence,  verified:  183. 

of  general  investigation  may  be  granted :  184. 

will  not  be  prevented  by  pendency  of  suit:  146  (Instance). 
REHEARINGS  (act),  sec.  16a:  293. 
Relief  from  long  and  short  haul  section,  jurisdiction  of  Commission 

exclusive:  21. 
Relief,  may  not  accord  with  moving  papers :  108. 

answer  does  not  ask  for  affirmative :  123. 
Remedy  for  violation  of  act  to  regulate  commerce,  sec.  9 :  91. 
REMEDIES  under  existing  law  not  barred  (act),  sec.  20:  294;  sec.  22: 

297 ;  sec.  23 :  297. 
Removal,  no  jurisdiction  on,  if  none  in  State  courts :  233. 

from  State  to  Federal  court :  255. 
Reparation,  jurisdiction  of  Commission  to  award:  27;  29. 

jurisdiction  over  carriers  essential  to:  31  (Instance). 

power  to  award  construed:  30;  31  (Instance). 


INDEX  487 

[Eeferences  are  to  pages] 

Reparation — continued. 

inadequate  remedy:  31  (Instance). 

not  awarded  where  trial  by  jury  required:  32  (Instance). 

grounds  for,  must  exist:  31  (Instance). 

for  what  usually  asked :  130. 

bill  of  particulars  should  accompany  petition  for :  109 ;  130. 

carriers  complainant  not  entitled  to :  30. 

to  whom  may  be  awarded :  39. 

awarded  to  real  parties  in  interest:  130  (Instance). 

proof  of  damages  essential  to  an  award  of:  30. 

may  be  awarded  to  members  of  associations:  30;  132  (Instance). 

members  of  complaining  association  are  not  entitled  to,  where 
demand  is  indefinite:  132  (Instance). 

cases  may  be  held  open  for  proof  of:  22;  23  (Instance). 

general  averments  will  not  sustain  claims  for:  103  (Instance). 

limitation  of  actions  in :  93. 

should  not  be  asked  on  stale  demands:  135  (Instance). 

cases  seeking,  Commission  may  impose  conditions  before  dis- 
missal: 138. 

time  when  shall  begin,  is  in  discretion  of  Commission:  130. 

claims  for,  may  be  presented  by  assignee:  135  (Instance). 

by  members  of  association  through  common  assignee :  135. 

may  be  denied  for  want  of  proof:  134  (Note). 

must  be  asked  for  in  complaint:  134  (Instance). 

complaints  for,  for  associations  should  be  distinct :  134. 

will  not  be  awarded  for  speculative  or  remote  damages:  133 
(Note);  134  (Instance). 

difficult  to  determine  in  unjust  discrimination  cases :  133. 

protest  not  necessary  to  entitle  one  to:  133  (Instance). 

Commission  exercises  discretion  as  to  amount  of:  133  (Instance). 

may  be  awarded  by  consent  of  parties:  133  (Instance). 

will  not  be  awarded  in  all  meritorious  cases:  133  (Instance). 

claim  for,  must  originate  in  a  bona  fide  cause:  133  (Instance). 

may  be  awarded  against  carriers  not  parties  to  proceeding  under 
certain  circumstances:  132  (Instance). 

liability  of  carriers  for,  is  restricted  to  those  composing  through 
route:  132  (Instance). 

not  necessary  that  shipper  be  ultimately  damaged  to  secure :  132. 

for  unreasonable  rate,  must  be  based  on  evidence  and  finding  that 
it  was  such  when  paid:  130  (Note). 

measure  of,  for  unreasonable  rate:  32  (Instance). 

awarded  against  receiver,  must  be  presented  to  court :  32. 

special.    See  Special  reparation. 


488  INDEX 

[References  are  to  pages] 

Reparation — continued. 
Orders  awarding:  139. 
orders  for,  duty  of  carriers  to  obey :  30. 
for,  must  be  based  on  findings  of  fact :  30. 
REPARATION  (act).    See  Money  damages. 
Reparation  cases,  practice  in,  generally :  130. 

allegations  of  complaint  must  be  specific :  130. 
evidence  required  in :  179. 
REPEAL  of  conflicting  laws  (act),  sec.  10,  act  of  June  29,  1906:  299; 

sec.  4,  Elkins'  law:  306. 
Replication,  none  before  Commission:  108;  125. 

leave  asked  to  file  was  denied:  126  (Instance). 
Report  or  opinion  of  the  Interstate  Commerce  Commission  part  of 

record  of  case :  14. 

Reports  of  congressional  committees  as  aids  to  interpretation  and  con- 
struction of  act  to  regulate  commerce:  68. 
Reports  of  the  Interstate  Commerce  Commission  official :  10. 
Reports  of  the  Interstate  Commerce  Commission,  annual:  11. 
REPORT  AND  DECISION  of  Commission  recorded  (act),  sec.  14:  288.    See 

also  Annual  report. 

published  and  distributed,  sec.  14:  288. 
served,  sec.  14:  288. 
Res  adjudicata  decision  of  court  of  appeals  binding  on  Commission: 

155  (Instance). 

Retaliation,  complaint  for  purpose  of,  does  not  commend  itself  to  Com- 
mission: 102  (Instance). 

Rights  existing  at  common  law  and  not  reiterated  or  denied  by  act  to 
regulate  commerce  may  be  enforced  in  State  or  Federal 
courts:  194. 
under  act  to  regulate  commerce  and  enforceable  in  Federal  courts 

only:  194. 

Rulings  and  opinions.    See  Administrative  rulings  and  opinions. 
Rules  of  pleading  and  evidence  as  affecting  election  of  forum:  91. 
Rules  of  Practice  before  Commission :  374 ;  381. 

jurisdiction  of  Commission  to  make :  29. 
Safety-appliance  acts:  54. 
decisions  under :  54. 
benefits  of :  55  (Note) . 

SALARIES  (act),  Commission,  sec.  11:  286;  sec.  24:  298. 
employees  of  Commission,  sec.  18 :  294. 
employees  of  carrier  in  annual  report,  sec.  20 :  294. 


INDEX  489 

[Eeferences  are  to  pages] 

Scandal  and  impertinence,  no  rule  respecting :  108. 

Schedules  and  tariffs,  Commission  may  determine  form  of:  49. 

how  pleaded :  104. 
SCHEDULE,  tariff  (act).    See  Tariff. 
Seal  of  Commission,  authorized:  13. 

to  be  judicially  noticed :  264. 
SEAL  OF  COMMISSION  (act),  sec.  17:  293. 
SECRETARY  OP  COMMISSION  (act),  sec.  17:  293. 

Section  5440,  R.  S.,  indictments  under,  in  connection  with  act  to  regu- 
late commerce :  228. 
SELF-CRIMINATION  (act),  sec.  12:  286;  sec.  9,  Act  of  June  29,  1906: 

298;  Immunity  laws:  300-301. 

Service  on  controlling  company  is  valid  in  complaint  against  subsidiary 
company:  110  (Note). 

of  complaint  on  official  of  carrier  is  valid  although  he  be  subse- 
quently succeeded  by  another :  108. 

proper,  is  essential  to  jurisdiction  of  court:  196  (Instance). 
SERVICE  (act)  of  decisions  of  Commission,  sec.  14:288. 

order  of  Commission,  sec.  16 :  290. 

process  in  money  damage  cases,  sec.  16 :  290. 
Services,  what  included  in  ' '  transportation  " :  34. 
Sessions  of  Commission,  rule  of  practice  respecting :  12 ;  374. 
SESSIONS  OF  COMMISSION  (act),  sec.  19:  294. 
SHIPPER  (act),  claim  for  money  damages;  sec.  10:  285;  sec.  16:  290. 

joint  liability  with  carrier  for  damages,  sec.  10:  285. 

penalty  for  obtaining  rebates  by  device,  sec.  10:  285;  sec.  1, 
Elkins'  law:  303. 

rendering  service  compensated,  sec.  15:  289. 
SHORT  HAUL,  long  haul  (act),  sec.  4:  282. 
Sleeping-car  companies,  subject  to  act  to  regulate  commerce :  32. 

may  be  parties  defendant:  116. 
SLEEPING-CAR  COMPANIES,  covered  by  act,  sec.  1 :  279. 

employees  carried  free,  sec.  1 :  279. 
SOLICITING  (act).    See  Rebates. 
Special  agents  or  examiners  may  be  employed  by  Commission:  50. 

duties  of:  29. 

SPECIAL  AGENTS  (act).    See  Examiners  and  agents,  special. 
Special  counsel,  Commission  may  employ:  50;  255. 
SPECIAL  COUNSEL  (act),  sec.  16:  290. 
Special  investigations,  evidence  in:  180. 
Special  reparation,  instructions  respecting:  337. 

if  granted,  similar  action  in  other  cases:  337. 


490  INDEX 

[References  are  to  pages] 

Special  reparation — continued. 

stipulation  in,  between  consignor  and  consignee :  337. 
payment  authorized  only  to  consignor  or  consignee:  337. 
claims  for,  barred  after  two  years :  337. 
authority  for,  within  six  months :  337. 
form  for:  334. 

"Spurs"  included  in  "railroad":  33. 
Stale  demands  would  not  be  granted  under  act  to  regulate  commerce 

prior  to  June  29,  1906:  93  (Instance), 
reparation  should  not  be  asked  on:  135  (Instance), 
cases  will  not  be  reopened  to  present:  135  (Instance). 
Stare  decisis  may  apply  unless  decision  rendered  under  misconception : 

154  (Instance). 

Commission  does  not  consider  itself  bound  by  doctrine  of :  154. 
State  courts  have  no  jurisdiction  to  enforce  rights  under  act  to  regu- 
late commerce:  233  (Note). 
STATE  RAILROAD  COMMISSIONS  (act),  sec.  13:  288. 
State  railway  commissions,  comity  between,  and  Commission :  44. 

decisions  of,  are  entitled  to  respect  of  Commission  but  are  not 

conclusive :  44  (Instance), 
may  have  apparent  concurrent  jurisdiction  with  Commission  in 

certain  cases:  22. 

often  exercise  jurisdiction  in  intrastate  commerce :  194. 
State  statute  repealing  authority  of  complainant  before  Commission 
does  not  preclude  Commission  from  general  investigation: 
25. 

Stating  part  of  formal  complaint:  101. 
Statistical  groupings  of  railways:  9. 

of  States,  not  to  be  confused  with  assignments  for  correspond- 
ence :  7. 

Statistics,  Commission  gives  little  weight  to:  145  (Note). 
Statute,  rules  for  pleading  under,  applicable  to  pleadings  before  Com- 
mission: 98. 

Stipulation,  form  of,  in  special  reparation  case :  337. 
"Storage"  services  included  in  "transportation":  34. 
STORAGE  services  (act),  sec.  1:  279. 
Street  Kailways  in  District  of  Columbia,  jurisdiction  of  Commission 

over:  52;  58. 

STREET  RAILWAYS  in  District  of  Columbia  (act)  :  308. 
Subjects  covered  by  Administrative  Rulings  and  Opinions :  85. 
Subpoena  duces  tecum,  rules  concerning  issuance  of:  148. 
applications  for,  not  frequent :  149. 


INDEX  491 

[Eeferences  are  to  pages] 

Subpoena  duces  tecum — continued. 

applications  for,  to  parties  need  not  be  as  strong  as  against 
strangers:  148. 

application  for,  must  be  in  writing,  specific  and  verified:  148. 

may  not  avail  against  third  parties  where  their  rights  must  be 
respected:  148. 

modes  of  avoiding :  149. 
Subpoenas,  rule  of  practice  respecting :  378. 

may  be  issued  by  Commission :  28. 

form  of:  329. 

SUBPOENA  signed  by  Commissioner  (act),  sec.  17:  293. 
Subsidiary  carrier  proper  but  not  necessary  party :  120. 
Substitution  to  bring  in  new  parties:  121. 

Suit  in  court  will  not  prevent  an  order  of  Commission:  146  (Instance). 
Suits,  expedition  of:  239. 
SUIT  (act),  damage,  election  of,  sec.  9:  284. 

on  order  for  payment  of  money,  sec.  16 :  290. 

on  order  other  than  for  payment  of  money,  sec.  16 :  290. 
SUIT  against  Commission   (act),  appeal  to  Supreme  Court,  sec.  16: 
290;  expediting  act:  307. 

expediting  act  applies,  sec.  16:  290;  sec.  3.  Elkins'  law:  305. 

no  injunction  except  after  notice,  sec.  16 :  290. 

priority  in  Supreme  Court,  sec.  16 :  290. 

venue,  sec.  16 :  290. 

Supervisory  and  regulatory  powers  of  Commission:  49. 
SUPREME  COURT,  appeals  to  (act),  sec.  16,  290;  expediting  act:  307. 

in  injunction  cases,  sec.  16 :  290. 

priority  of  Commission  cases,  sec.  16:  290. 
Switch  connection  Commission  may  order :  22. 

conditions  necessary  to  give  Commission  jurisdiction :  27. 

jurisdiction  of  Commission  to  order:  27. 

Commission  may  determine  safety  and  practicability  of:  50. 

is  power  to  compel  exclusively  within  police  power  of  States :  22. 

apparent  concurrent  jurisdiction  of  Commission  and  State  courts 
or  commission  respecting:  22. 

location  of,  Commission  may  permit  parties  to  determine :  28. 

evidence  required  in  cases  alleging  failure  to  make :  168. 
SWITCH  CONNECTIONS  (act),  maintained  and  operated,  sec.  1:  279. 

subject  to  Commission's  order,  sec.  1 :  279. 
"Switches"  included  in  "railroad":  33. 
SWITCHES,  spurs,  sidetracks  (act),  sec.  1:  279. 


492  INDEX 

[References  are  to  pages] 

Tariffs  and  schedules  of  carriers  in  charge  of  division  or  tariffs  and 
transportation:  9. 

have  been  subject  of  general  investigations :  24. 

for  export  and  import  commerce,  publication  of:  19  (Note). 

certified  copies  of,  prepared  by  division  of  tariffs  and  transporta- 
tion: 9. 

evidence  required  to  compel  publication  and  filing  of :  169. 

judicial  notice  of,  by  Commission :  144. 

how  pleaded:  104. 

not  usual  to  file  as  exhibits  to  complaints :  109. 

how  introduced  in  evidence:  144. 

ought  not  be  annexed  as  exhibits  to  pleadings :  105. 

certified  copies  of,  to  be  admitted  as  evidence  in  courts :  263. 

courts  may  direct  enforcement  of  published :  48. 
Tariff  circulars,  15-A;  16-A:  12. 

excerpts  from:  309-314. 

Tariff  laws,  interstate  commerce  law  can  not  be  construed  to  cooper- 
ate with:  64  (Instance). 
TAEIFP  SCHEDULE  (act),  concurrence  of  carriers  shown,  sec.  6:  282. 

deviation  from,  prohibited,  sec.  6:  282;  sec.  1,  Elkins'  law:  303; 
sec.  3,  Elkins'  law:  305. 

import  duty  collected,  if  not  filed,  sec.  6 :  282. 

filed,  the  legal  rate,  sec.  1,  Elkins'  law:  303. 

filed,  public  record,  sec.  16 :  290. 

form  prescribed  by  Commission,  sec.  6 :  282. 

notice  of  thirty  days  before  change,  sec.  6:  282. 

participants'  names  shown,  sec.  6:  282. 

printing,  posting  and  filing,  sec.  6:  282;  sec.  1,  Elkins'  law:  303. 

transportation  prohibited  until  filed,  sec.  6 :  282. 
Technical  terms  and  abbreviations,  pleading :  104. 

may  be  explained  by  experts:  157  (Instance). 
"Terminal  facilities"  included  in  "railroad":  33. 
TERMINAL  FACILITIES  (act),  sec.  1 :  279. 
Territorial  groups  of  railways:  9. 
Territorial  jurisdiction  of  Commission :  19. 
Testimony,  nature  of,  before  Commission :  145. 

not  usually  confined  to  allegations  in  pleadings :  149. 

character  of,  in  unreasonable  rates  case:  146. 

difference  in  testing  reasonableness  of  single  and  entire  schedule 
of  rates:  146  (Instance). 

rule  of  practice  respecting :  380. 

interveners  may  adduce :  121. 


INDEX  493 

[Beferences  are  to  pages] 

TESTIMONY  (act),  agents'  or  examiners,  sec.  20:  294.    See  also  Com- 
pulsory testimony. 

deposition,  sec.  12:  286. 
Through   routes,    carriers   forming,   may   have   reparation   awarded 

against,  although  not  all  parties  to  proceeding :  132. 
Through  routes  and  joint  rates,  Commission  may  establish :  26. 

exclusive  jurisdiction  of  Commission  to  prescribe :  21. 

evidence  required  in  cases  seeking:  168. 
THROUGH  ROUTES  AND  JOINT  RATES  (act),  sec.  1:  279. 

Commission  may  prescribe,  sec.  15 :  289. 
TIMBER  AND  ITS  PRODUCTS  excepted  from  "commodity"  clause  (act), 

sec.  1 :  279. 
Time  required  to  get  a  decision :  14. 

as  affecting  election  of  forum :  92. 

of  filing  pleadings :  110. 

for  answer :  123. 

TIME  act  effective,  Joint  resolution  of  June  30,  1906 :  299. 
Titles  of  leading  railroads :  391 ;  394. 
"Tracks"  included  in  "railroad":  33. 

Transfer  in  transit  ' '  services ' '  in  connection  with,  included  in  ' '  trans- 
portation": 34. 
"Transportation,"  definition  of,  in  act  to  regulate  commerce :  34. 

meaning  of:  34  (Note). 

handlers  of,  may  be  parties  defendant :  116. 
^'TRANSPORTATION"  defined  (act),  sec.  1:  279. 

prohibited  until  rates  published,  sec.  6:  282. 
Trustees  as  parties:  114. 

TRUSTEES  and  receivers  subject  to  act,  sec.  20 :  294. 
UNDUE  PREFERENCE  or  advantage  forbidden  (act),  sec.  3:  281. 
Unjust  discriminations  between  persons,  evidence  required  in  cases  in- 
volving: 172. 

UNJUST  DISCRIMINATION  defined  and  forbidden  (act),  sec.  2:  281. 
Unreasonable  rates,  measure  of  damages  for:  32. 
"Vehicles"  included  in  "transportation":  34. 
Ventilation  services  included  in  "transportation":  34. 
Venue  of  actions:  229. 

of  suits  to  restrain  taking  effect  of  unreasonable  rates :  210. 

of  suits  for  forfeitures :  202. 

VENUE  of  suits  against  Commission  (act) ,  sec.  16 :  290. 
Verification  of  pleadings  no  longer  required :  101  (Note) ;  106. 

required  in  petitions  for  relief  under  fourth  section :  106. 

petition  for  rehearing  should  be  verified  if  new  evidence  is  to 
be  introduced:  183. 


494  INDEX 

[References  are  to  pages] 

Violations  of  act  to  regulate  commerce,  classes  of:  99. 

power  of  Commission  is  limited  to:  17  (Instance). 

complaint  insufficiently  charging,  will  be  dismissed :  103. 

notice  in  nature  of  demurrer  may  be  used  to  determine  if  facts 
pleaded  constitute:  123. 

investigations  into,  by  division  of  prosecutions:  8. 
VIOLATION  of  act.    See  Criminal  provisions. 
Want  of  evidence  may  prevent  determination  of  questions :  42. 
Want  of  jurisdiction  of  Commission  necessarily  fatal:  17. 
WAR  (act),  preference  to  military  traffic  in  time  of,  sec.  6:  282. 
Water  carriers,  operating  independently  not  subject  to  act  to  regu- 
late commerce:  32;  36. 

rail  and,  subject  to  act  to  regulate  commerce :  32. 
WEIGHING,  false  (act),  sec.  10:  285. 
Witnesses,  rule  of  practice  respecting:  378. 

rule  of  practice  (Lawson)  as  to  competency  of:  146. 

competency  of  (courts)  :  238. 

compelling  attendance  of,  before  Commission:  258. 

witness  may  testify  as  to  results  of  examination  of  numerous  doc- 
uments: 150. 

maker  of  freight  classification  not  competent  to  interpret  the 
meaning  of:  148  (Instance). 

compelling  attendance  of,  before  Commission,  statute  providing 
for,  is  constitutional :  259. 

immunity  of :  67;  160;  261. 

intervener  may  examine:  122. 

qualifications  of:  147. 

maker  of  freight  classification  not  competent  to  interpret :  148. 

may  testify  results  of  examination  of  numerous  documents:  150. 

fees  of:  160;  264. 

fees,  tender  of:  160. 

adverse,  practice  in  calling:  164. 

method  of  examination  of:  164. 

examination  of,  by  Commissioners  or  examiners:  12;  28;  165. 
WITNESSES  (act),  fees  before  Commission,  sec.  18:  294. 

fees  for  depositions,  sec.  12:  286. 

fees  in  courts,  sec.  12 :  286 ;  sec.  16 :  290. 

immunity  of,  sec.  9 :  284 ;  sec.  12 :  286 ;  immunity  laws :  300-301. 

See  also  Compulsory  testimony. 
Writs  issuable  under  act  to  regulate  commerce :  198. 
Written  instruments,  how  pleaded :  104. 
"Yards,"  included  in  "railroads'':  33. 

[TOTAL  NUMBER  OF  PAGES,  514] 


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